Soverignity in Theory and Practice W.nagan

Sovereignty in Theory and Practice
WINSTON P. NAGAN*
AITZA M. HADDAD**
TABLE OF CONTENTS
I.
II.
INTRODUCTION.........................................................430
THE HISTORICAL CONTEXT...................
........................... 435
A.
B.
C.
D.
E.
F.
G.
III.
THE THEORY OF SOVEREIGNTY AND INTERNATIONAL LAW
A.
B.
C.
D.
IV.
JeanBodin and Sovereignty Theories in Context .....

....... 438
The Work and Contributionsof Thomas Hobbes...........442
The Work and Contributionsof Hugo Grotius...........444
446
.................................
The Treaty of Westphalia
The Work and ContributionsofPufendorfand Vattel.
............. 447
The Work and Contributionsof Moser and Martens...
....... 449
John Austin and the Theory of Sovereignty...............451
MODERN INTERNATIONAL SOVEREIGNTY
A.
B.
453
...................
Sovereignty andInternationalObligationAfter the

First World War......................
.................
Sovereignty and InternationalObligationAfter the
Second World War..........................
...............
ThresholdEmpiricalIdeas and Sovereignty
....................
Sovereignty and the U.N. Charter....................
...........
..................................
U.N. Charter'sMembership, Obligations,and

Responsibilities........................................
Security Council.......................................
453
455
456
459
461
462
464
*Winston
P. Nagan, J.S.D. (1977) is Sam T. Dell Research Scholar Professor of
Law in IJFL College of Law. He is widely published in human rights, a fellow of the
RSA and the interim Secretary General of WAAS. He is also an affiliate Professor of
Anthropology and Latin American Studies and the Director of the University of Florida
Institute for Human Rights, Peace and Development.
**
Aitza M. Haddad, J.D. (2010), LL.M. (2011) is a Fellow of the University of
Florida Institute for Human Rights, Peace and Development, and a Junior Fellow of the
World Academy of Art and Science.
429
HeinOnline -- 13 San Diego Int'l L.J. 429 2011-2012
C.
D.
E.
V.
CONTEMPORARY JURIS CONSULTS RELATING TO THE LEGAL

THEORY ASPECTS OF SOVEREIGNTY: U.K. SCHOLARSHIP
A.
B.
C.
D.
E.
VI.
B.
C.
D.
E.
F.
G.
H.
VIII.
B.
C.
D.
469
....................
471
471
472
474
476
478
..................... 479
.................... 498
EmpiricalPerspectives and Theories of Decolonization ......................... 499

The United Nations and the InternationalCriminalJustice.................... 502
Nuremberg and IndividualResponsibility....................... 503
The Nuremberg Principles
.......................................
505
CONSTITUTIVE PROCESS AND SOVEREIGNTY IN THE AFTERMATH

OF NUREMBERG
................................................
A.
........... 467
The Background to the Development of the Sovereignty

Idea in US. Legal Practiceand Scholarship...........
......... 479
1. James Bradley Thayer.................................
481
2. John Chipman Gray............................
482
3. Oliver Wendell Holmes, Jr..........................
483
Hart andSacks: The Legal ProcessApproach ..................
485
CarlSchmitt: Sovereignty Rooted in the Political
Exception
..................................
.............. 486
HannahArendt: Sovereignty Rooted in People's
Expectations.
....................................
.......
488
Justice Samuel A. Alito Jr.: The Unitary Executive .........
...... 489
John Yoo: The Unitary Presidency
....................................
494
Bruce Ackerman: Legislative Emergency Sovereignty............................. 496
Laurence Tribe and PatrickGudridge: The
Supremacy ofLaw.
...............................
........
497
CONTEMPORARY PROBLEMS IN THEORY AND PRACTICE ..
A.
B.
C.
D.
..... 466
The Work and Contributions ofHL.A. Hart.........

.............
The ContributionsofIan Brownlie
.......................
The ContributionsofNico Schriver and Anthony Carty .........................
The Work and ContributionsofNeil MacCormick
and Philip Allot........................................
The Contributionsof Colin Warbrick and Stephen Tierney.....................
SOVEREIGNTY, INSTITUTIONAL COMPETENCE AND U.S. PRACTICE
A.
VII.
The PracticeofInternationalLaw in the Twentieth

............................
Century andSovereignty
The Treaty Model After the U N. Charter:Sovereignty
and the Control andRegulation of Global Spaces
and Resources
.............................
.............
Sovereignty and the Spaces Relating to the Ocean's
and PolarRegions of the World.........................
........ 506
The New Haven Approach: Empirical and Normative

Integration.......................
....................
The Map and Markers of the Global Social Process ........
......
The Map and Markers of the World PowerProcess................................
Map and Markers of the Global Constitutive Process.............................
508
510
512
515
1. INTRODUCTION
This Article deals with the theory and practice of sovereignty from the
perspective of a trend in theoretical perspectives as well as the relevant
430
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trend in practice. The Article provides a survey of the leading thinkers'

and philosophers' views on the nature and importance of sovereignty.
The concept of sovereignty is exceedingly complex.'
Unpacking its
meanings and uses over time is challenging. An aspect of this challenge
is that the discourse about sovereignty is vibrant among diverse policy,
academic, and political constituencies. 2 At times, its narratives are
relatively discrete and at other times, the narratives overlap with the
discourses from other professional orientations. In this Article, we seek
to enhance clarification about the sovereignty discourses and narratives
used in theory and practice. For example, the Article begins with the
work of Bodin and Hobbes. Both of these theorists make a case for the
exercise of political power in hierarchical terms.3 It is unclear whether
they are describing political power as it is, or recognizing the hierarchical
aspect of sovereignty, as it ought to be. Both Bodin and Hobbes were
scholars, although Bodin was also a prominent politician. They were both
attracted to the idea of hierarchical sovereign power because they recognized
its importance in the maintenance of public order, which they saw threatened
by religious sectarian violence. In this sense, they would appear to
have a normative preference for the concentration and centralization
of power to retain minimum order. This would implicate a minimum
normativity creeping into their analysis. Additionally, they were both
aware the concentration of power could lead to its abuse. They denied
sovereign absolutism in somewhat modest terms. In short, they were
concerned about social chaos and in a limited way, sovereign abuse.
Our study moves into the sovereignty idea in the context of
international law with reference to the work of Grotius, the Dutch
international lawyer of the early 17th century. Grotius took the
sovereignty discourse to another level by considering the problem of
1.
See
generally
EDGAR
GRANDE
&
Louis
W.
PAULY,
COMPLEX
SOVEREIGNTY: RECONSTITUTING POLITICAL AUTHORITY IN THE TWENTY-FIRST CENTURY
(Univ. of Toronto Press
(2005); see also Kanishka Jayasuriya,
Globalization,
Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism?, 8
CONSTELLATIONS, 442-60 (2001): see also Jacques Maritain, The Concept of

Sovereignty, 44 AM. POL. SCI. REV. 343-57 (June 1950).
2. Id.
3.
See generally Preston T. King, THE IDEOLOGY OF ORDER: A COMPARATIVE
ANALYSIS OF JEAN BODIN AND THOMAS HOBBES, Psychology Press (1999); see generally
Preston T. King, THE IDEOLOGY OF ORDER: A COMPARATIVE ANALYSIS OF JEAN BODIN
AND THOMAS HOBBES (Psychology Press 1999).
4.
5.
Id
Id.
431
sovereignty in an environment of multiple sovereigns.6 This was an

environment, which required law and legal skills and therefore provided
a framework within which reasoned legal elaboration would provide a
mechanism to coordinate sovereign relations and thereby provide
international restraints on sovereign absolutism.7 The Article then considers
a significant 17th century juridical event in the practice of international
law. We refer to the Treaty of Westphalia (1648) and its relevance to
the development of sovereignty in practice. The importance of the
Treaty is that it juridicalized the idea of an international society based on
sovereign nation States. It is a framework that has had incredible
traction over time, and was reflected in the most powerful theories of
international law founded on the nation-state participants.8 The Article
then reviews the work of other international scholars and philosophers
from Pufendorf to Austin. These early international lawyers grapple
with the idea of sovereignty and the subordination of sovereignty to the
idea of international obligation. Their work begins to show the influence
of positivism and the development of international law based on empirical
sources such as treaty and custom. These developments are then confronted
with a new and rigorous jurisprudential theory of sovereignty developed
by the English legal philosopher, John Austin. 9 Austin developed the
theory of sovereignty of considerable power and durability and modified
versions of his idea of sovereignty continue to be important in
international law and international relations today.'o
It is important to note that Austin's view of sovereignty was an
explicit indication of the use of a positivistic, scientific view of law."
Technically, the logic of Austin's system was to deny the legal character
of international law. Since there was no global super-sovereign, there
6. See generally EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: GROTIUS,

COLONIALISM AND ORDER IN WORLD POLITICS (Cambridge Uni. Press 2002); see also
Edward Keene, The Dualistic Grotian Conception of International Society presentation at the
BISA Annual Conference (2000); see also Samuel K. Murumba, Grappling with a
GrotianMoment: Sovereignty and the Questfor a Normative World Order, 19 BROOK. J.
INT'L L. 829 (1993); see also A. Claire Cutler, The Grotian Tradition in International
Law, 23 BRIT. Y.B. INT'L L. 1 (1946).
7. Id.
8. Istyan Hont, The Permanent Crisis of a Divided Mankind: 'Contemporary
Crisis of the Nation State' in Historical Perspective, 42 POL. STUD. Supp. 1 166-231
(1994); see also Myres S. McDougal, Peace and War: FactualContinuum with Multiple
Legal Consequences,49 AM. J.INT'L L. 63-68 (1955).
9. See generally WILLIAM LOUTIT MORISON, JOHN AUSTIN (Stanford Univ. Press
(1982); see generally JOHN AUSTIN & ROBERT CAMPBELL, LECTURES ON JURISPRUDENCE:
OR, THE PHILOSOPHY OF POSITIVE LAW (John Murray 1880).
10. Id.; see also John Dewey, Austin's Theory of Sovereignty, 9 POL. Sc.
52 (1894).
11. Id.
432
Q. 31-
[VoL. 13: 429, 2012]

could be no global super-law that subordinated sovereign competence.12

In his view, international law was a form of positive morality. Austin
did not demolish international law completely, but his thick version of
sovereignty had a dramatic influence on the development of
international law into the 20th century.14 Austin's approach to law
suggested that all law was rooted in the orders of the sovereign and this
reshaped legal thinking globally.15 It also implicated two different
versions of science: the first logical and analytical, the second empirical. 6
Each version had a distinctive approach to the identification of the
sovereign, who was the source of all law. The analytical approach was
considerably refined in the 20th century by such leading theorists as
H.L.A Hart.17 Hart and his influence have been significant in the
scholarship of British international law and the discourse generated on
the concept of sovereignty.' 8 Several important British jurists are
considered in this Article. The Article also shifts its focus to the 20th
century examining the changing character of sovereignty in the aftermath of
the First and the Second World Wars and the implications of the U.N.
Charter for rethinking the boundaries of sovereignty. The Article then
focuses on the practice of international law and its influence on the
boundaries of sovereignty in terms of international agreements regulating
global spaces and resources, including the oceans and Polar Regions.
Part IV examines the significant contributions made by scholars from
the United Kingdom to the theory and understanding of sovereignty.
This includes the work of H.L.A. Hart, Brownlie, and other more
contemporary U.K. scholars.
Part V shifts the focus to the scholars who had significantly influenced
the ideas of sovereignty in U.S. practice and theory. Here, Austin's
12.
Id.
13. David Lyons, Principles,Positivism, and Legal Theory, 87 YALE L.J. 415-35
(1977); see also Mark R. MacGuigan, Law, Morals, andPositivism, 14 U. TORONTO L.J.,
1-28 (1961); see also H. L. A. Hart, Positivism and the SeparationofLaw and Morals,
71 HARv. L. REV. 593 (1957).
14. Id.; see also Wilfrid E. Rumble, Legal Positivism of John Austin and the
Realist Movement in American Jurisprudence,66 CORNELL L. REV. 986 (198 1).
15. Id.
16. Id.
17. See generally NEIL MACCORMICK, H.L.A. HART (Stanford Univ. Press 2008);
see generally H.L.A. HART, LAW, LIBERTY, AND MORALITY (Stanford Univ. Press 1963).
18. H.L.A. Hart, American Jurisprudence through English Eyes: The Nightmare
and the Noble Dream, 11 GA. L. REV. 969 (1977); see also H.L.A. Hart, Murder and the
PrinciplesofPunishment: Englandand the UnitedStates, 52 Nw. U. L. REV. 433 (1957).
433
influence has been less analytical and conceptual, and more empirical.' 9
In part, this is a reflection of the complexities of the form of
constitutional governance as well as the influence of the revolt against
formalism in U.S. and its influence on legal theory.2 0 The Article traces
the influence of positivism in its empirical sense on such theorists as
Holmes, Gray, and Thayer. In the social sciences, the influence of the
empirical approach was also beginning to find traction. 2 1 The Political
theorist, Harold Dwight Lasswell, was a leader in the behavioral
movement in the U.S. 2 In the 1930's he published two books, which
had a significant effect on providing an empirical orientation to the ideas
of sovereignty and the nation State. In his book, World Politics and
PersonalInsecurity, he explored the importance of understanding the
global environment in terms of the individual's perspectives of identity,
demand, expectation, insecurity, and anxiety. 23 He also wrote
Psychopathologyand Politics, where he reconceptualized the State as a
"manifold of events" and insisted that the State was not a super individual
phenomenon, but empirically, a many individual phenomenon.2 4 In fact,
Lasswell was virtually recasting international relations in international
law with a focus on sovereign personalities, to the idea of world politics
in which the give and take of actual human beings shapes the conditions
of world order from the local to the global and vice versa.25 These ideas
19. Brian C. Schmidt, Anarchy, World Politics and the Birth of a Discipline:
American InternationalRelations, Pluralist Theory and the Myth of Interwar Idealism,
16 INTERNATIONAL RELATIONS 9, 9-31 (Apr. 2002); see also Richard Little,
Historiography and International Relations, 25 REV. OF INT'L STUDIES 291, 291-99
(1999); see also Nicholas Greenwood Onuf, Sovereignty: Outline of a Conceptual
History, 16 ALTERNATIVES: GLOBAL, LOCAL, POLITICAL 425, 425-46 (1991); see also M.
H. Hoeflich, John Austin andJoseph Story: Two Nineteenth Century Perspectives on the
Utility of the Civil Law for the Common Lawyer, 29 AM. J. LEGAL HIST. 36 (1985).
20. Id.; see also Susan Haack, Legal Pragmatism: Where Does 'The Path of the
Law' Lead Us?, 50 AM. J. OF JURISPRUDENCE, 71-105 (2005); see also Thomas C. Grey,
Modern American Legal Thought, 106 YALE L.J. 493-517 (1996).
21.
See generally EILEEN MUNRO, UNDERSTANDING SOCIAL WORK: AN EMPIRICAL
APPROACH (Athlone Press 1998).

22. Myres S. McDougal & W. Michael Reisman, HaroldDwight Lasswell (19021978), 73 AM. J. INT'L L. 655-60 (1979).
23.
HAROLD D. LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY (Free Press
1965).
24.
HAROLD D. LASSWELL, PSYCHOPATHOLOGY AND POLITICS (Univ. Chi. Press
1986).
25. MYREs S. McDOUGAL, HAROLD D. LASSWELL & LUNG-CHU CHEN, HUMAN
RIGHTS AND WORLD PUBLIC ORDER: THE BASIC POLICIES OF AN INTERNATIONAL LAW OF
HUMAN DIGNITY, (Yale Univ. Press 1980); see also Myres S. McDougal, Harold D.
Lasswell & Lung-chu Chen, Human Rights and World Public Order: A Frameworkfor
Policy-Oriented Inquiry, 63 AM. J. INT'L L. 237-69 (1969); see also Myres S.
McDougal, Harold D. Lasswell, & W. Michael Reisman, Theories about International
Law: Prologue to a Configurative Jurisprudence(Faculty Scholarship Series, Paper 673
(1968)).
434
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Sovereignty in Theory andPractice

SAN DIEGO INT'L L.
were later to emerge in an approach to sovereignty that involved more

refined theories and methods of a contextually understanding, and the
rooting of the sovereignty idea in global social, power, and constitutive
processes.2 6 This is discussed in the last part of the Article. In the
meanwhile, there were more intermediate developments in legal and
political theory in the U.S. We explore the works of Hart and Sacks, Carl
Schmitt and Hannah Arendt, and in contemporary terms, the contributions
of Judge Samuel Alito and the scholars Professor Ackerman (Yale), Yoo
(Berkley), and Tribe (Harvard). The Article concludes by reference to
the implications for sovereignty of international practice indicated in the
Nuremberg Proceedings and then refers to the developments of Lasswell
and McDougal in the New Haven School and the ideas and methods of
contextual mapping for the empirical specification of the sovereignty
idea.
II. THE HISTORICAL CONTEXT
The era of world politics in our time recognizes that the most
important, territorially organized body politic in global political culture
is the State.27 The most basic characteristic of a State is that it needs a
degree of control over the body politic, and control must invariably be
accompanied by the component of authority in the exercise of the
governing competences. 28 The complex combination of authority and
control in the governance of a State is generally described in terms of the
idea of sovereignty.29 The conventional meaning of a State that is
sovereign is that it is (1) a territorially organized body politic; (2) which
has indications of a person or institution (3) vested with supreme control
26. Id.
27. Winston P. Nagan, FRSA & Craig Hammer, The Changing Character of
Sovereignty in International Law and International Relations, 43 CoLUM. J. TRANSNAT'L
L. 141 (2004-2005) explores conceptual basis of sovereignty in terms of theory and
international legal practice. It seeks to understand sovereignty in the changing context of
international relations, globalization and the developments in international law that have
constitutional characteristics under the U.N. Charter and practice. It also seeks to root
contemporary ideas of sovereignty in the authority of the people's perspectives
themselves, idea that is given formal expression in the preamble of the U.N. Charter
itself.
28. Nandasiri Jasentuliyana, Perspectives on international law, KLUWER LAW

INT'L 20 (1995) (statting that "[s]o far as States are concerned, the traditional definitions
provided for in the Montevideo Convention remain generally accepted").
29. Supra note 1.
435
and authority for that entity. 30 The two qualities that are indispensable to
the idea of sovereignty are the elements of control and authorit , which
accompanies the sovereign's supreme governing competences.
Since
the term supreme qualifies the term sovereign, there is some ambiguity
between the idea of supreme and the quantum of power necessary to
assure supreme power. The clarification of this issue is empirical. It
would require a greater understanding of the production and distribution
of effective power within the body politic as well as the projection of
sovereign power externally. To reduce sovereignty to the idea of control
or supreme control seems to be incomplete. The general expectation is
the sovereign requires something more than raw power or control in the
exercise of effective governing competence.3 2 It is generally thought
that sovereign competence is accompanied by the idea of authority.33
The inquirer therefore needs some clarification about whether the authority
aspects of sovereignty are purely matters of conceptual and normative
discourse or whether some aspects of authority are matters that ought to
be empirically defined and therefore have a scientific component to
them.3 This Article seeks to integrate a historical, a jurisprudential, and
a world politics perspective. In the context of jurisprudence, it breaks
new ground by bringing in the work of Harvard professors that do not
directly unpack sovereignty but in fact their theories advance understanding
with their notions of institutional competence. The perspective of world
politics, as reflected in the New Haven School, is also meant to bring
newer insights into sovereignty by understanding it as an outcome of
important global processes, which inform world politics and world public
order.
Most theorists would agree that the term sovereignty includes references
to supreme power and authority relating to a body politic that is territorially
30. Id.; see also MALCOLM NATHAN SHAW, INTERNATIONAL LAW 178 (Cambridge
Univ. Press (2003) (stating that "Article I of the Montevideo Convention on Rights and
Duties of States, 1933 lays down the most widely accepted formulation of the criteria of
statehood in international law. It note that the state as an international person should
possess the following qualifications: '(a) a permanent population; (b) a defined territory;
(c) government; and (d) capacity to enter into relations with other states"').
31. See Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The
world process of effective power: The global war system, in POWER AND POLICY IN
QUEST OF LAW, ESSAYS IN HONOR OF EUGENE VICTOR RosTow 353, 353 (Myres S.
McDougal & W. Michael Reisman eds., 1985); Literature that empirically explores
power; As Rosalyn Higgins does, see Higgins 1977 (discussing the meanings of power
and authority under New Haven jurisprudence).
32. See generally supra note 30.
33. Id.; see also David Garlan, The Limits of the Sovereign State; Strategies of
Crime Control in ContemporarySociety, 36 BRIT. J.CRIMINOLOGY 445-71 (1996).
34. Id.
436
[VoL. 13: 429, 2012]

However, giving concrete meaning to

determined or determinable.
ideas like "supreme," "power," "authority," "body politic," and
"territoriality" are complex matters and their meanings appear still to be
intellectually and scholastically unfolding. In addition, there are other
levels of complexity. Sovereignty, as understood in terms of governing
competence, is tied to the prescription, application, and enforcement of
law. 6 This really requires clarification from a very different branch of
inquiry: law. The work of Herman Dooyeweerd introduces the idea of
how sovereignty has a special meaning in the context of jurisprudence
and how in territorial terms it exists and coordinates with sovereigns
organized in these terms. 37 Jenks and Larson seek to clarify this level of
complexity by su esting that sovereignty has an internal and an
external dimension. Rosalyn Higgins concluded in her work that it is
the complexity of the external dimension of sovereignty that must also
be considered.3 9 Sovereignty has meanings and applications in such
fields as international relations, world politics, international law, and
diplomacy.4 0
It may be that the sovereignty of internal domestic imperium and
sovereignty in the context of international relations and world affairs
represent very different conceptual worlds. Harold Lasswell and
35. See Ronald A. Brand, Sovereignty: The State, the Individual, and the
InternationalLegal System in the Twenty First Century, 25 HASTINGS INT'L & COMP. L.
REV. 279 (2001-2002); see also Robert Latham, Social Sovereignty, 17 THEORY,
CULTURE& SOCIETY 1- 18 (2000).
36. Nagan and Hammer, supra note 27.
37.
See generally HERMAN DOOYEWEERD, THE CONTEST ABOUT THE CONCEPT OF
SOVEREIGNTY IN MODERN JURISPRUDENCE AND POLITICAL SCIENCE (Free Univ.
Q. 1951)
(Tracing the historical development of Sovereignty in legal and social thought).

38.
ARTHUR LARSON, C. WILFRED JENKS & OTHERS, SOVEREIGNTY WITHIN THE
LAW (Oceana Publications 1965) (consisting of a collection of essays by leading thinkers

addressing the problem of limiting sovereignty under the rule of law).
39. Rosalyn Higgins, Integrations of Authority and Control: Trends in the
Literature of InternationalLaw and InternationalRelations, in TOWARD WORLD ORDER
AND HUMAN DIGNITY, ESSAYS IN HONOR OF MYRES S. McDOUGAL 79, 80-81 (W.
Michael Reisman & Bums H. Weston eds., 1976) (leading academic commentator on the
issues of control and authority in the structure and process of International Legal Order
discusses the meanings of power and authority under New Haven jurisprudence and
indicates that authority constitutes expectations of appropriateness in regard to the
phases of effective decision processes maintaining that authority has to be seen as
interlocking with supporting control, or power).
40. See generally supra note 35; see also Janice E. Thomson,_State Sovereignty in
InternationalRelations: Bridging the Gap between Theory and EmpiricalResearch, 39
INT'L STUDIES Q. 213-33 (1995).
437
Abraham Kaplan explained in their work how external sovereignty must

accommodate a world of alternate sovereigns through the mechanisms of
diplomacy and a wide variety of methods of formal and informal
communications strategies. 4 1 The central issue here is the reach of
sovereign competence across State and sovereign lines. Reisman and
Weisman enhance awareness of complexities, which represent a major
intellectual challenge in unpacking sovereignty for the conditions of the
new millennium. 42 Sovereignty is not static but instead is a changing
phenomenon; changes take place when the very concept itself means
different things to different professions, disciplines, and political and
legal cultures. Additionally, the nature of world politics and international
relations has been deeply impacted by processes encapsulated in the
term globalization.44 The simplest explanation of the globalization
phenomenon is in terms of its effects on sovereignty.4 5 The phenomenon of
globalization works on the insight that sovereign borders have in fact
become porous in the face of the global flow of goods, services, people,
and communications.46
A. Jean Bodin and Sovereignty Theories in Context
The modem concept of sovereignty owes a great intellectual debt to
the French political theorist Jean Bodin. Bodin's work is credited with
giving the sovereignty concept coherence, content, and currency.47 The
41.
HAROLD D. LASSWELL & ABRAHAM KAPLAN, POWER AND SOCIETY, A FRAMEWORK
FOR POLITICAL INQUIRY 159, 188 (1950). See generally Myres S. McDougal, W. Michael
Reisman & Andrew R. Willard, The World Community: A Planetary Social Process, 21
U.C. DAVIS L. REV. 807, 807 (1988) (exposing the markers, tools and methods of social
theory that are relevant this exploration).
42. See generally W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard,
The New Haven School: A BriefIntroduction,32 YALE J.INT'L L. 575 (2007) (overviewing of
the approach of the constitutive foundations of sovereignty in the International System).
43. Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World
Constitutive Process of Authoritative Decision, 19 J. LEGAL EDuc. 253 (1967) (This is an
overview on the constitutive foundations of sovereignty in the International System. It
explains how a complete denial of the principles of humanitarian law, especially when
grave breaches of that law are involved, also represents a rejection of fundamental
human rights precepts and may point to an alternative normative order that essentially
disparages the precept of human dignity.).
44. See generally David Held & Anthony G. McGrew, Governing Globalization:
Power, Authority and Global Governance, POLITY (2002); see also Stephen M. Walt,
InternationalRelations: One World, Many Theories, 110 FOREIGN POLICY 29-32, 34-46
(special ed.: Frontiers of Knowledge 1998).
45. Id.; supra note 1.
46. Id.
47. Jean Bodin, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (substantive revision
2010), http://plato.stanford.edu/entries/bodin; see also JEAN BODIN, ON SOVEREIGNTY,
FOUR CHAPTERS FROM THE Six BOOKS OF THE COMMONWEALTH I (Julian H. Franklin ed.,
1992) (stating that it should be examined considering its perspective from a scholarly
438
[VoL. 13: 429, 2012]

simplistic sense of Bodin's contribution is that it was committed to the

concentration of power in the monarchy and therefore laid the
foundations of sovereign absolutism. 48 While it is possible to impose
such a gloss on his work, there is ample evidence contradicting this in
the work of J.H.M. Salmon,49 in his work on sovereignty, as well as
evidence of his public life. Bodin was by no means committed to sovereign
absolutism. 50 It would be better to see Bodin's work on sovereignty in
the context of the political turmoil of his time. The public order of
Europe, based on the Holy Roman Empire and the idea of Christian
universality, was in fact crumbling under the influence of the
Reformation. 5' The demise of the Holy Roman Empire diminished the
sense of Christian Universalism in Europe which produced a legacy of
religious wars which appeared interminable and generated social
dislocation and anarchy-matters that universalism could not remedy. 52
Bodin's theory explains how public order tasks fell to local elites who
controlled territory and population and how the local prince was seen as
representing the idea of majestas." Bodin had a number of experiences-
outlook of his experience as a protector of the people and a limitor of royal power; its
external aspect covers war and international relations. Sovereignty is defined in terms of
a Roman Law idea-malestas; "Sovereignty is the absolute and perpetual power of a
commonwealth, which the Latins call malestas.").
49. These books represent Bodin's work on sovereignty. It is possible that
Bodin's theory could be seen as justifying royal sovereign powers. Bodin also saw this
property as belonging to the people and not the crown. Julian H. Franklin, Jean Bodin,
in I EUROPE 1450 To 1789, ENCYCLOPEDIA OF THE EARLY MODERN WORLD 270-72
(Jonathan Dewald ed., 2004); J.H.M. Salmon, Theory of Sovereignty, in 5 EUROPE 1450
TO 1789, ENCYCLOPEDIA OF THE EARLY MODERN WORLD 447-50 (Jonathan Dewald ed.,
2004).
50.
See J.H.M. Salmon, The Legacy of Jean Bodin: Absolutism, Populism or
Constitutionalism?,17 HISTORY OF POLITICAL THOUGHT 500,500-22, 523 (1996).
51.
See generally Edward R. Norman, The Roman Catholic Church: an illustrated
history (Univ. of California Press 2007); see generally PETER HAMISH WILSON, THE
HOLY ROMAN EMPIRE, 1495-1806 (Palgrave Macmillan 1999); see generally VISCOUNT
JAMES BRYCE BRYCE, THE HOLY ROMAN EMPIRE (Macmillan and Co. 1920).
52. See generally Moshe Reiss, The Clash of Civilizations or Religions, http://
www.moshereiss.org/west/02 clash/02 clash.htm (last visited Feb. 6, 2012) (analyzing
the impact of religion and or culture on the secular nation State in world order. It gives
an explanation of how the conflicts of religion that were generated during this period
were a major public policy problem).
53. J.H.M. Salmon, supra note 50; see generally ALAN JAMES, SOVEREIGN
STATEHOOD: THE BASIS OF INTERNATIONAL SOCIETY IX (Taylor & Francis 1986) (stating
"[m[ajestas est summa in cives ac subditos legibusque solute potestas" (Sovereignty is

supreme power over citizens and subjugated peoples and is bound by no other law)).
439
political, scholastic, and religious-making his view of sovereignty

more complex.5 4 Bodin's experience seems to indicate that what was
needed locally was order that could be best sustained by hierarchy.55
The prince or the king seemed to be an ideal fit for the public order and
safety needs of the bod politic. Bodin was a scholarly eminence in
He was consulted by the king on technical
matters of governance.
matters of governance, held elected office, and was elected a deputy of
Vermandois and to the Estate's General of Blois.
He received the
presidency of the deputy of the Third Estate.58 In this role, he was a
tenacious defender of the interests of "the people." 59 This could be seen
as promoting a weakening of the monarchy in the interests of the Third
Estate. Bodin had a record of challenging royal power over economic
issues. The religious man in him resisted royal policies that he saw as
provocative of religious conflict rather than tolerance. 6 0
Bodin grapples with the problem of the sovereign's relation to
tyrannicide, suggesting that there are circumstances in which despotism
is justified and that tyranny is absolutely forbidden. 6 1 Bodin acknowledges
that sovereignty has an internal aspect that covers full political power,
and that there are different forms of State and forms of governance. He
suggests that the notion of sovereignty in the form of an absolutist
monarch is only one form of governance.6 2 Bodin's focus on monarchical
sovereignty draws an awkward distinction between a despotic monarchy
and a tyrannical one.63 A despotic monarchy is still sovereign if it has
defeated its enemies in a "just" war and then treats them as a despot.64
54. P.L. Rose, SELECTED WRITINGS ON PHILOSOPHY, RELIGION AND POLITICS,
GENEVE: DROz (1980); A compendium of Jean Bodin's most important pieces. The
author uses them to provide an orientation to Bodin's work and to attract the reader to
the context of Bodin's work which implicated religious conflict. Contains "Epitre A son
neveau" 1586; "Consilium de institutione principis" 1603; "Sapientiae moralis epitome"
1586; "Paradoxon" 1596; "Le Paradoxe de J. Bodin" 1598; "Lettre AJean Bautru de
Matras" 1568-69; "Lettre de M. Bodin" 1590.
55. Julian H. Franklin & Robert M. Isherwood, Jean Bodin and the Rise of
Absolutist Theory, 1 HISTORY: REVIEWS OF NEW BOOKS (2010); see also J.U. Lewis,
Jean Bodin's 'Logic ofSovereignty', 16 POL. STUD. 206, 206-22 (1968).
56. Id; see generally supra note 53.
57. See generally supra note 47; see also Summerfield Baldwin, Jean Bodin and
the League, 23 CATH. HiST. REV. 160-84 (1937); see also Owen Ulph, Jean Bodin and
the Estates-Generalof 1576, 19 J.MODERN HIST. 289, 289-96 (1947).
58. Id.
59. Id.
60. Id.
61. See Nagan and Hammer, supra note 27
62. Id; see generally supra notes 3 & 53.
63. Id.
64. See Matthew S. Weinert, Bridging the human rights-Sovereignty divide:
Theoreticalfoundations of a democratic sovereignty, 8 HuM. RTs. REV. 5-32 (2007); id.
at 8-9. "Bodin clarifies By royal or legitimate monarchy, he means that form of
440
[VoL. 13: 429, 2012]

The war is valid under the law of nations, and therefore this form of
despotism is valid. . If the sovereign conquers in an "unjust" war, then
his conduct in expropriating the rights of the conquered is the one of a
tyrant.65 In Bodin's view, despotism may be appropriate and sometimes
legal but tyranny is never legitimate; it is contrary to divine and natural
law. 66 Bodin has tied sovereignty to certain limiting factors. In the
definition of sovereignty, Bodin uses the term absolute, an adjective
drawn from Roman Law experience where is linked to the idea of
sovereign prerogatives (legibus solutus). 67 Bodin's sovereign is not
subject to civil or positive law. However, the sovereign is bound by
natural and divine law.68 In short, the concepts of "supreme" or "absolute"
are unequivocally limited by natural law, divine law and, to some extent,
international law. 69 This suggests that Bodin's use of the term absolute
is meant to be qualified, and suggests restraints on sovereignty within
the domain of natural and international law. 70 Bodin's sovereignty was
trying to reconcile the need for some level of hierarchical authority for
public order with his belief in the legitimacy of the people and in divine
and natural law.7 1 The element of explicit elucidation lacking in Bodin
is the conjoining of authority with sovereignty or majestas.72 It is clear
that when distinguishing different forms of State and governance, it is
government "in which the subject obeys the laws of the prince, the prince in turn obeys
the laws of God, and natural liberty and the natural right to property is secured to all (II.
ii. 56)." By despotic monarchy he means "one in which the prince is lord and master of
both the possessions and the persons of his subjects by right of conquest in a just war; he
governs his subjects as absolutely as the head of a household governs his slaves?'
Finally, by tyrannical monarchy he means that form of government "in which the laws of
nature are set naught, free subjects oppressed as if they were slaves, and their property
treated as if it belonged to the tyrant" (56f).
65. Id.
66. Id.
67. See generally Richard Bonney, Absolutism: What's in a name?, I FRENCH
HIST. 93-117 (1987); see also Gilbert Bagnani, Divine Right and Roman Law, 3
PHOENIX 51-59 (1949); see also Max Adams Shepard, Sovereignty at the Crossroads:A
Study ofBodin, 45 PoL. Sel. Q. 580-603 (1930).
68. Id.
69. Id.; see generally ALESSANDRO PASSERIN D'ENTREVES, NATURAL LAW: AN
INTRODUCTION TO LEGAL PHILOSOPHY (Transaction Publishers 1951).
70. See KLUWER LAW INT'L, PERSPECTIVES ON INTERNATIONAL LAW 20 (Nandasiri
Jasentuliyana ed., 1995) (giving an explanation of how the traditional definitions
provided
States in
71.
72.
for in the Montevideo Convention remain a generally accepted concern within

the International community).
See generallysupra notes 47, 53, 64, and 67.
Id.
441
not at all clear that sovereignty draws its authority from the body
politic.73 Bodin's distinctions between despotism and tyrannicide seem to
diminish the salience of divine and natural law as sources of sovereign
authority. In other words, it is not that Bodin is devoted to unqualified
absolutism; it is more that his concern with the practical problem of
public order and stability in a time of conflict and social dislocation.
Hence, Bodin may be read as stressing the control element of the idea of
sovereignty.
B. The Work and Contributionsof Thomas Hobbes
Thomas Hobbes believed that the motivation for the covenant creating
sovereignty is the notion of insecurity and fear.74 Hobbes expressed this
idea as a fear of an outside conqueror or fear of one's fellow citizens.
This kind of social contract or covenant involves the renunciation of
rights or the transfer of rights and the authorization of sovereign
competence.76 The central issue of the authority of the sovereign is not
the covenant or contract but whether if the sovereign can effectively
discharge the obligation to protect those who have consented to
In order to discharge the obligation to protect, the
obedience.
sovereign needs effective government.7 ' To have effective government, its
authority must be absolute.79 It is essential for sovereignty to have
certain rights that cannot be tested. These rights confer powers that must
be reliably and effectively used in governance.80 In this sense, Hobbes
73. See MALCOLM N. SHAW, INTERNATIONAL LAW 178 (5th ed.) (2003) (exploring
of the most widely accepted formulation of the criteria of statehood in international law
provided in Article I of the Montevideo Convention on Rights and Duties of States,
1933 which lays down that the State as an international person should possess the a
permanent population, a defined territory, a government and capacity to enter into
relations with other states).
74. S.A. Lloyd, Hobbes's Moral and Political Philosophy, STANFORD
ENCYCLOPEDIA OF PHILOSOPHY (substantive revision 2008), http://plato.stanford.edu/
entries/hobbes-moral/ (stating that Hobbes is widely regarded as one of the great political
philosophers in history; his great work the "The Leviathan" is compared to the great
works of the classical philosophers such as Plato, Aristotle, Locke, Rousseau, Kant, and
Rawls).
75. Id.; see also King supra note 3.
76. Id; see generally GEORGE SHELTON, MORALITY AND SOVEREIGNTY IN THE
PHILOSOPHY OF HOBBES (St. Martin's Press 1992).
77. Id.; see also David Dyzenhaus, Hobbes and the Legitimacy of Law, 20 Law
and Philosophy, no. 5, 461-98 (2001); see also Quentin Skinner, Hobbes on Sovereignty:
An Unknown Discussion, 13 POL. STUD. 213-18 (1965).
78. Id; see also W. Michael Reisman, Sovereignty and Human Rights in
ContemporaryInternationalLaw, 84 AM. J. INT'L L. 866, 866-76 (Oct. 1990).
79. Id.
80.
Id; see also BARRY HINDEss, DISCOURSES OF POWER: FROM HOBBES TO FOUCAULT,
(Blackwell Publishers 1996).
442
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provides a cleaner and more precise concept of sovereignty than Bodin

in terms of effective power or control. 8 ' Indeed, Hobbes believes that
limiting authority generates difficult disputes about what the precise
limits are of authority itself. Moreover, if the individual citizen may
unilaterally determine whether the government should be obeyed or not,
then the result may be civil war or paralyzed government. 82 According to
Hobbes, there can be no authority above the authority of the sovereign
for defining the question of authority itself.83 In effect, Hobbes works
on a dismal view of the human capacity for cooperation and a greatly
enhanced view of the ubiquity of social conflict.
Notwithstanding Hobbes' limited exceptions to sovereignty, his work
takes us far along the road of a sovereignty that is essentially unlimited.
In his work, Hobbes seems to be collapsing sovereignty into naked
power; and his sense of obligation is so limited and arid that Hobbes
does not account for the possibility that sovereign power needs authority
and authority that is more than a hypothetical covenant. In this sense,
Hobbes may have influenced the versions of sovereignty of the 19th and
early 20th centuries, which tended to claim a form of sovereign state
absolutism. Hobbes wrote several versions of his political philosophy
and there are many fine overviews of his normative philosophy.8 4 Homo
81.
82.
King, supra note 3.

Id.
83. ToM SORELL & Luc FoISNEAu, LEVIATHAN AFTER 350 YEARS (Oxford Univ.
Press 2004) (giving an elegant appraisal of the legacy of The Leviathan).
84. Hobbes wrote several versions of his political philosophy, including The
Elements of Law, Natural and Politic(also under the titles Human Nature and De
Corpore Politico) published in 1650, De Cive in 1642 published in English as
Philosophical Rudiments Concerning Government and Society in 1651, the
EnglishLeviathan published in 1651, and its Latin revision in 1668. Others of his works
are also important in understanding his political philosophy, especially his history of the
English Civil War, Behemoth published in 1679, De Corpore in 1655, De Homine in
1658, Dialogue Between a Philosopher and a Student of the Common Laws of
Englandin 168 1, and The Questions Concerning Liberty, Necessity, and Chance in
1656. All of Hobbes's major writings are collected in The English Works of Thomas
Hobbes, edited by Sir William Molesworth (ll volumes, London 1839-1845), and Thomae
Hobbes Opera Philosophica Quae Latina Scripsit Omnia, also edited by Molesworth (5
volumes, London, 1839-45). Oxford University Press has undertaken a projected 26
volume collection of the Clarendon Edition of the Works of Thomas Hobbes. So far 3
volumes are available: De Cive edited by Howard Warrender, The Correspondence of
Thomas Hobbes edited by Noel Malcolm, and Writings on Common Law and Hereditary
Right edited by Alan Cromartie and Quentin Skinner. Readers new to Hobbes should
begin with Leviathan, especially Parts Three and Four, as well as the more familiar and
often excerpted Parts One and Two.
443
homini lupus a Popular Roman proverb by Plautus (dead 184 B. C.), in

his Asinaria is later used by Thomas Hobbes in his De cive, Epistola
dedicatoria. Hobbes taught that "man is a wolf to other men" because
he believed that people, by nature, were selfish, and acted only to serve
their own interests." Hobbes believed that governments existed to protect
people from their own evil nature. 86 He further taught that the only way
to achieve lasting peace was for people to subjugate themselves to a
supreme, sovereign monarch. 87 Although Hobbes makes a strong case
for sovereign absolutism, his writings also suggest that there are some
limits to State absolutism. The citizen may disobey the government
because the citizen obtains a right of self-defense against sovereign
power.88 Hobbes also provides for resistance rights when family issues
and honor values are at stake.89 In his view, the fundamental obligation
on the sovereign is the obligation to protect the citizen. If the sovereign
fails to do so, this obligation no longer holds. 90 These limits on state
absolutism seems to suggest that limits on the currency and coherence of
Hobbes' concern for unfettered sovereign power.
C. The Work and ContributionsofHugo Grotius
Austin's later theory sought to be logically rigorous concluding both,
international law and constitutional law, which purported to limit the law
making competence of the sovereign, were not really law but simply
forms of positive morality.9 1 This view challenged centuries of
international law, which had been largely sustained by the ideas of the
ius gentium and later developments in natural law. 92 It would be
appropriate to briefly retrace the footprints of sovereignty's influence on
international law prior to Austin. The most important contribution to
natural law emerged from the Dutch Jurist, Hugo Grotius.9 3 Grotius
came from a nation State that had been immediately involved in a war of
85. S.A. Lloyd, Special Issue on Recent Work on the Moral and Political
Philosophy of Thomas Hobbes, 82 PAC. PHIL. Q. 3, 3-4 (2001) (affirming the current
salience and durability of Hobbes' ideas).
86. Id.; see generallysupra notes 76, 77, and 80.
87. Id.
88. Id.
89. Id.
90. Id
93.
See generally EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: GROTIUS,
COLONIALISM AND ORDER IN WORLD POLITICS (Cambridge Univ. Press 2002); see also
A. Claire Cutler, The 'Grotian Tradition' in International Relations, 17 REV. INT'L

STuD. 41, 41-65 (1991); see also Knud Haakonssen, Hugo Grotius and the History of
PoliticalThought, 13 POL. THEORY 239, 239-65 (1985).
444
[VOL. 13: 429, 2012]

independence against Spanish colonialism. 94 The states that comprised

the Netherlands were vigorous claimants of the right to self-determination
and independence of the nation state. 95 Grotius' masterful integration of
the independence and autonomy of the sovereign state, and the challenges
of developing orderly relations between states in periods of war and
peace, shows how a great deal of international law effectually evolved
with a working through of the imperatives of sovereign power and
authority and the constraints suggested by reason and expressed in the
form of international law. 96 A good indication of Grotius' approach is
found in the following quotation:
Fully convinced ... that there is a common law among nations, which is valid
alike for war and in war, I have had many and weighty reasons for undertaking
to write upon the subject. Throughout the Christian world I observed a lack of
restraint in relation to war, such as even barbarous races should be ashamed of,
I observed that men rush to arms for slight causes, or no cause at all, and that
when arms have once been taken up there is no longer any respect for law,
divine or human; it is as if, in accordance with a general decree, frenzy had
openly been let loose for the committing of all crimes. 97
One of the most important contributions that Grotius made to the

understanding of sovereignty in a climate of multiple sovereigns was his
introduction of the idea that legal thought and legal reasoning, which
implicated rationality, could be deployed in a way that brought reason to
the conduct of sovereigns among themselves." Grotius did much to
establish the idea of just war. He maintained that there were discoverable
natural justice principles which would justify war as just cause principles
of self-defense, reparation for injury, and punishment. 99 The concept of
just war is not really a license to make war, it is meant to be a constraint
94.
95.
Id.
Id.
96.
HUGONIs GROTIUs, DE JURE BELLI AC PACIS [THE LAW OF WAR AND PEACE]
(1625); This piece is a masterly integration of the independence and autonomy of the
sovereign state and the challenges of developing orderly relations between states in
periods of war and peace. It provided sufficient deference to the reality of the state and
provided the validation of reason as a foundation for the law of nations between states.
97.
HUGo GROTIUS, ON THE LAND OF WAR AND PEACE (DE IURE BELLI AC PACIS),
Prologue sec. 28, (Carnegie ed. 1925).

98. Id; see also Bacchus, James, Groping Toward Grotius: The WTO and the
InternationalRule of Law, 44 HARV. INT'L L.J. 533 (2003); see also Joachim von Elbe,
The Evolution of the Concept of the Just War in International Law, 33 AM. J. INT'L L.
665-68 (1939).
99. Id.; see generally PAUL RAMSEY, THE JUST WAR: FORCE AND POLITICAL
RESPONSIBILITY (Rowman & Littlefield 2002).
445
on recourse to war. His work also established the legal foundations of

restraint found in the ius in bello.o00 Grotius is justly regarded as the
father of modem international law.
D. The Treaty of Westphalia
The theories of Bodin and Hobbes should also be measured against the
practical world of international diplomacy of the 17th century. The most
significant diplomatic and juridical event for the idea of sovereignty
emerged from the Peace of Westphalia of 1648.101 This was essentially
a peace treaty seeking to establish a response to religious conflict in
Europe.102 Notably, Bodin had sought to constrain the impulse of this
conflict in France. 0 It is possible that Hobbes, too, may have being
influenced by the problems of conflict and the importance of strong
central authority to constrain it.' 04 The Treaty of Westphalia, in effect,
recognized that a European body politic would be a decentralized
sovereignty-dominated body politic.'0o This meant that the local elites
(i.e., dukes, princes, kings) would now exercise secular sovereign
authority over the lands and territories over which they could claim
authority and control.10 6 It is commonly understood that the Peace of
Westphalia was the decisive political and juridical event for establishing
a European system of authority based on the sovereignty of the nation
state.' 0 Moreover, the nation State would define its internal obligations
100. Id.; see also Judith Gail Gardam, Proportionalityand Force in International
Law, 87 AM. J. INT'L L. 391, 391-413 (1993).
101. Treaty of Westphalia, The Avalon Project: Documents in Law, History and
Diplomacy, Yale Law School; Lillian Goldman Law Library (accessed on Mar. 29,
2012); see generally MAJOR PEACE TREATIES OF MODERN HISTORY 1648-1967 (Fred L.
Israel ed., 1967) (stating that the centrality of the Treaty is that it was generated by
interest groups seeking to end interminable religious conflicts in Europe. It essentially
diminishes the political importance of the idea of Christian Universalism under Papal
authority and effectually decentralizes control and authority in terms of aggregates of a
population, territory and the localized structures of hierarchical authority).
102. Id.; see generally DANIEL H. NEXON, THE STRUGGLE FOR POWER IN EARLY
MODERN EUROPE: RELIGIOUS CONFLICT, DYNASTIC EMPIRES, AND INTERNATIONAL CHANGE
(Princeton Univ. Press 2009); see also Leo Gross, The Peace of Westphalia, 1648-1948,
42 AM. J.INT'L L. 20-41 (1948).
103. Id.; see generally supra notes 3, 47, 53, 64, and 67.
104. See generallysupra notes 3 & 80.
105. Derek Croxton, The Peace of Westphalia of 1648 and the Originsof Sovereignty,
21 INT'L HIST. REv. (2010); see also Eric Lane, Demanding Human Rights: A Change in
the World Legal Order, 6 HOFSTRA L. REv. 269 (1977-1978).
106. Id.
107. Id.; see Richard Falk, A New Paradigm for International Legal Studies:
Prospects and Proposals,84 YALE L.J. 969, 982-87, 1013, 1020 (1975). Contemporary
salience of Westphalia for the sovereignty/State paradigm of world order. Draws
attention to forces emerging in the global environment that essentially transcend to state,
including the importance of the emergent global civil society and the work of the New
446
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SAN DIEGO INT'L LJ.
according to the citizenship of its subjects rather than its religious or

confessional outlook.108 The important point here is that the rooting of
sovereign authority in secular terms would also imply that the limitations
(that, for example, Bodin supported on sovereign authority based on
natural law and divine law) would no longer be relevant to a form of
sovereignty that was meant to separate itself from religion. It is this
development of the sovereignty idea and its political expression and
development in the Treaty of Westphalia that provides us with the
prototype of the modem State system.109 This system is a sovereigntydominated paradigm of the global, legal, and political process, significantly
dominated by the nation state.' 10 It would appear that the drafters of the
Westphalian Treaty were not only motivated by the enduring religious
conflicts, but also by the influence of Bodin and Hobbes. What is
distinctive in Westphalia is that these theoretical and philosophical views
are given a strong institutional expression in the form of a multilateral
treaty. Modem commentators have suggested that from the perspective
of international relations and international law, the Treaty of Westphalia
was a decisive juridical event.'' In this sense, theory and philosophy
gravitate to law and jurisprudence."12
E. The Work and ContributionsofPufendorfand Vattel
Baron Samuel von Pufendorf was a German scholar with a wide range
of powerful interdisciplinary skills." 13 As a jurist, he did his most creative
work on international law at Lund University."14 Pufendorf shows how
Haven School and the procedures and methods which anticipate the possibility of other
social forces and foundations of modem international law.
108. Id.; see also Bjorn Hettne, The Fate of Citizenship in Post-Westphalia, 4
CITIZENSHIP STUDIES, 1 (2010); see also Charles Tilly, Citizenship, Identity and Social
History. 40 INT'L REV. Soc. HisT. 1, 1-17 (1995).
109. Id; see also RICHARD FALK, THE DECLINE OF CITIZENSHIP IN AN ERA OF
GLOBALIZATION, IN PEOPLE OUT OF PLACE: GLOBALIZATION, HUMAN RIGHTS, AND THE
CITIZENSHIP GAP (Alison Brysk & Gershon Shafir eds., Psychology Press 2004); see also
RICHARD FALK, THE DECLINE OF CITIZENSHIP IN AN ERA OF GLOBALIZATION, 4
CITIZENSHIP STUDIES, 1 (2010).
110. Id.; see also Jack Goldsmith, Sovereignty, InternationalRelations Theory, and
InternationalLaw, 52 STANFORD L. REV. 959-86 (2000).
111. Id.
112. Id.
113. Id.
114. See generally Hugh Chisholm, Pufendorf Samuel, ENCYCLOPEDIA BRITANNICA
(11th ed., Cambridge Univ. Press ed. 1911).
447
he struggled with Hobbes' philosophy and rejected the destructive

implications of Hobbes' views of human nature."s Pufendorf was also
influenced by Grotius, and therefore by Grotius' ideas of international
obligation and the reality of the state; namely, how Grotius considered
that the state represented the aggregate will of individuals in it, an idea
that seemed to anticipate the rooting of sovereignty in the authority
of the people." 6 In regard to international law, he argued that natural
law does not extend beyond the limits of this life and that it confines
itself to regulating external acts.'" 7 In this sense, Pufendorf was seeking
to secularize natural law and bring the idea closer to what later would be
considered empirical science. In particular, the externalization of natural
law effects may be seen as an effort to make it objective. Pufendorf also
tried to strengthen the authority foundations of the sovereign state by
suggesting that the state (civitas gentium) was a moral person (persona
moralis)."' This notion would strengthen the idea of sovereignty of the
nation state. Further, the introduction of the moral element meant that
all nations, whether Christians or not, were a part of humanity expressed
through the state as a moral person. Therefore international law recognizes
states with a certain moral persona subject to obligations as moral persona
in their interactions with each other." 9 The international law of the 16th
century was also influenced by the work of the international law scholar,
Swiss philosopher and jurist, Emerich de Vattel.120 Vattel shows how he
accepted the sovereignty of the nation state but also stressed the
115. Id.; see also Fiammetta Palladini, Pufendorfdisciple of Hobbes: The nature of
man and the state of nature: The doctrine of socialitas, 34 History of European Ideas,
(2012); see generally SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS (Basil
Kennett, trans., 1729) (providing a comprehensive system of society, law, and government
based on a theory of human nature founding natural law on the need for sociability).
Pufendorf paid great respect to Grotius as the founder of a modern, enlightened natural
law, but criticized his remaining "scholasticism." Similarly, he learned from Hobbes but
rejected the reduction of natural law to individual self-interest.
116. Id.; see also John Finnis, On the Incoherence of Legal Positivism, 75 NOTRE
DAME L. REV. 1597 (1999-2000).
117. Id.; see generally Samuel von Pufendorf, De officio hominis et civis juxta
legem naturalem libri duo (Oxford Univ. Press 1927); see also Samuel Pufendorf
(Freiherr von), CRAIG L. CARR, THE POLITICAL WRITINGS OF SAMUEL PUFENDORF
(Oxford Univ. Press 1994).

118. Id.; see also Hans Aufricht, Personality in InternationalLaw, 37 Am. Pol. Sci.
Rev. 217, 217-43 (1943); see generally CHARLES EDWARD MERRIAM, HISTORY OF THE
THEORY OF SOVEREIGNTY SINCE ROUSSEAU (Columbia Univ. Press 1900).
119.
Id.; see also Harold Hongju Koh, Why Do Nations Obey InternationalLaw?,
106 YALE L.J. 2599, 2599-2659 (June 1997) (Symposium: Group Conflict and the
Constitution: Race, Sexuality, and Religion).
120.
Id.
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SAN DIEGO INT'L LL
importance of the nation state for advancing the common good.121 He

expressed his fundamental idea as follows:
All nations are therefore under a strict obligation to cultivate justice towards
each other, to observe it scrupulously, and carefully to abstain from everything
that may violate it. Each ought to render to the others what belongs to them, to
respect their rights, and to leave them in the peaceable enjoyment of them. 122
F. The Work and ContributionsofMoser and Martens

The work of Johann Jakob Moser and Georg Friedrich von Martens is
particularly important for changing and justifying the endurance of a
"strong" or "thick" 23 sovereignty in international law.124 Both of these
writers were influenced by the positivist approach to international law,' 25
which meant a sharp break with the ideas of international obligation as
founded in terms of morality or natural law.' 26 What was important was
what sovereigns did and how they acted. In the international context,
sovereigns overwhelmingly communicated with each other in terms of
agreements.127 Moser shows that this method of communication meant a
121.
See generally EMMERICH DE VATTEL, THE LAW OF NATIONS, OR PRINCIPLES OF
THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS
(Joseph Chitty, trans.) (1834) (explaining Vattel's political philosophy views of politics
and international relations). His book influenced recognized people of history and it
modernized the entire theory and practice of international law. It has been translated to
several languages and distributed all around the world.
122. Emerich de Vattel , Droit des gens; ou, Principesde la loi naturelleappliquTs
a la conduite et aux affaires des nations et des souverains (1758), LAW OF NATIONS OR,
PRINCIPLES OF THE LAW OF NATURE: APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS
AND SOVEREIGNS (1759 First English Edition, Book II, Chapter V).
123. Cynthia Weber, Reconsidering statehood: examining the sovereignty/

intervention boundary. Review ofInternationalStudies, 18 , pp 199-216, (1992).
124. Martti Koskenniemi, Into Positivism: Georg Friedrich von Martens (17561821) and Modern InternationalLaw, 15 CONSTELLATIONS No 2 190, 201 (2008). This
article is an analysis of the legacy of the "positivism" of Georg Friedrich von Martens. It
describes it as a positivism of fear or a conservative disposition and shows how Martens
explained that natural law does not entitle Christian princesses to take territory occupied
by savages creating a revolution in the enthusiasm for human freedom and enlightenment.;
see also Peter P. Remec, The Position of the Individual in InternationalLaw According
to Grotius and Vattel, 44 REVUE INTERNATIONALE DE LA CROIX-ROUGE
(1962).
125.
126.
(1959).
314, 314-15
Id.
Id; see also Hans Wehberg, PactaSunt Servanda, 53 AM. J. INT'L L. 775-86
127. Id; see generally MICHAEL FOWLER & JULIE MARIE BUNCK, LAW, POWER, AND
THE SOVEREIGN STATE: THE EvOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY
(Penn State Press 1995).
449
positive source of international law found in the agreements made by the

sovereigns. 128 According to Martens it was possible to establish this
method because one could empirically determine what the sovereigns
consented to in their agreements by collecting all possible treaties and
organizing them.12 9 Such agreements represent the consent of the sovereign
to be bound and therefore such consent is reconcilable with the sovereign
powers of the state. A second component of international law was
reflected in the recognition of the custom that the sovereigns had
generated in their operations with each other.' 3 0 In a technical sense,
custom is a non-consensual source of international law, and since it could
be seen as non-consensual, it might be inconsistent with the sovereign
autonomy of the other state. The test evolves in such a way as to suggest
that custom carries the implicit consent of the State to be legally bound.
Essentially, custom was qualified by the principle opinio juris sive
necessitatis.131 Custom and treaty, therefore, became the primary sources of
international law and these sources could be reconciled with the
sovereignty of the nation state without recourse to the vagaries of the
natural law tradition.132 Powerful as these theories were, they could not
quite destroy the Grotian tradition, which sought to make international law
subject to a principle of reasonable prescription and application.
Additionally, the Moser-Martens approach still had to confront the
power of Austin's theory and its challenge to the reality of international
128. Id; see generally JOHANN JAKOB MOSER, VERSUCH DES NEUESTEN EUROPAISCHEN
VOLKERRECHT IN FREIDENS- UND KRIEGSZEITEN (10 vols., 1777-1780); BEITRAGE ZU DEM
NEUESTED EUROPAISCHEN VOLKERRECHT IN FRIEDENSZEITEN (5 vols., 1778-1780);
BEITRAGE ZU DEM NEUESTED EURPAISCHEN VOLKERRECHT IN KRIEGZEITEN (3 vols., 17791780) (1732 to 1780) (explaining that International law was above all professional
practice and was the first to discuss in an adequate form the subject of European
international law in times of peace and war being the first legal scholar to bring out a
complete presentation of German constitutional law). His entire work shows his
influence in the process of making public law an academic science.
129. Id.; see generally GEORG FRIEDRICH MARTENS, SUMMARY OF THE LAW OF NATIONS:
FOUNDED ON THE TREATIES AND CUSTOMS OF MODERN NATIONS OF EUROPE (William
Cobbett, trans., 1986) (providing a list of the principal treatises from 1748 to the time of
its creation that have great practical utility even when it might be seen as a very partial
view of the systems of Europe of that time) The book had gone through 13 editions and
in 1894 Holland won the Swiney Prize of E100 and a silver cup.
130. Id.
131.
See generally, SUZANNE LALONDE, DETERMINING BOUNDARIES IN A CONFLICTED
WORLD: THE ROLE OF UTI POSSIDETIS (McGill-Queen's Press (MQUP) 2002); see also
Stern, Brigitte, Custom at the Heart of InternationalLaw, 11 DUKE J. COMP. & INT'L L.
89 (2001); see also Chodosh, Hiram E., Neither Treaty nor Custom: The Emergence of
Declarative InternationalLaw, 26 TEX. INT'L L.J. 87 (1991); see also Slama, Jo Lynn,
Opinio Jurisin Customary InternationalLaw, 15 OKLA. CITY U. L. REv. 603 (1990); see
also G. I.Tunkin, Remarks on the JuridicalNature of Customary Norms ofInternational
Law, 49 CALIF. L. REv. 419, 419-30 (1961).
132. Id.
450
[VoL. 13: 429, 2012]

law that it was merely positive morality.133 The leading English

international lawyer of the 19th and early 20th century, Holland,
lamented that international law reflected the vanishing point of legal
theory.134 Moreover, other leading international lawyers appear to agree
with this idea.135
G. John Austin and the Theory of Sovereignty
The political and philosophical writings of Bodin and Hobbes,'3 6 and
the practical expression of some of these themes in the European State
system in the aftermath of the Westphalian peace,'37 received a significant
and strengthened intellectual presence through developments in legal
theory and legal culture.' 38 In his early works, Austin developed his
imperative theory of law that used the emerging tools of positivism to
provide, for a linguistically sensitive effort, a definition and redefinition
of the nature of law.139 The central idea was that law was the command
of a sovereign imposed by a sanction.' 40 The command was directed at
133.
See generally THOMAS ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE
(13th ed. 1924) (explaining positive law, its source, object and the importance of the
laws of rules of human action in the determination of rights of public or private character
providing a guide on how to analyze them and their leading classification, which is based
on the persons with whom it is connected; public persons being the state or its delegates).
134.
See generally CHINA MIlVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORY
OF INTERNATIONAL LAW (Haymarket Books 2006).

135. Id.; see generally HERSCH LAUTERPACHT, THE FUNCTION OF LAW IN THE
INTERNATIONAL COMMUNITY (Oxford Univ. Press 2011); see also W. Michael Reisman,
International Lawmaking: A Process of Communication: The Harold D. Lasswell

Memorial Lecture (Proceedings of the Annual Meeting), 75 AM. Soc'Y INT'L L. 101,
101-20 (1981) (Proceedings of the 75th Anniversary Convocation. Order, Freedom,
Justice, Power: The Challenges for International Law); see also Onuf, Nicholas
Greenwood, InternationalLegal Order as an Idea, 73 AM. J. INT'L L. 244 (1979); see
also H. Lauterpacht, The Nature of InternationalLaw and General Jurisprudence,37
ECONOMICA 301, 301-20 (1932).
136.
137.
138.
See generally supra notes 3, 47, 53, 64, 67, and 80.
See generally supra notes 101, 102, and 105.
Supra note 1.
139. See generally supra note 9; see also John Austin, THE PROVINCE OF
JURISPRUDENCE DETERMINED (John Murray 1832).
Austin was the leading legal
positivist of his time and his approach to sovereignty is an effort to bring the objectivity
of science to the description and analyses of law based on sovereign authority. His
model is essentially a hierarchical concept of law with the sovereign in a superior
position issuing orders and commands to the community, which is in the habit of
obedience.
140.
Id; see generally JOHN AUSTIN, ROBERT CAMPBELL, LECTURES ON JURISPRUDENCE:
OR, THE PHILOSOPHY OF POSITIVE LAW (John Murray 1880); see also Kenneth Mann,
451
members of the community, who were in the habit of obedience

regarding the sovereign's commands.14 1 Since the State in Europe had
evolved with higher degrees of centralization and administration, the
idea of the State as sovereign, and as the source of all law, had an
intuitive commonsense appeal. 4 2 This was a relatively easy model to
understand because it was straightforwardly hierarchical with the genius
of having some of the most essential characteristics of law, which it
could account for.143 The problem with Austin's theory is that it had a
close affinity with rower or control.'" The element of authority in his
model was lacking. 45 This meant that the model, which reduced law to
superior power, looked no different from a gunman who enters a bank
with a gun and demands that the cash be handed over to him. In short,
the gunman exercises a power to force someone (or oblige someone) to
do or refrain from doing something. But the question of whether there is
an obligation, which is founded on authority and which requires
compliance, is ignored. The Austinian model gravitated to the status
of the conventional view of law and solidified the place of sovereignty
not only in municipal law but also in international law.14 6 It is possible
to view this development as a critical formalization of the thoughts of
Bodin, Hobbes, and the outcomes of the Westphalian peace. Nineteenth
century State practice solidified a Eurocentric conception of sovereignty
and state.14 7 These developments were consolidated by the Congress of
Vienna and later by the process known as the Concert of Europe. 48 The
developments of European colonial expansion, which were accelerated
in the 19th century, used sovereignty ideas imposed on the complex colonial
societies that they had conquered to generate a degree of order among
colonial competitors.
Punitive Civil Sanctions: The Middleground between Criminal and Civil Law, 101 YALE
L.J. 1795, 1795-1873 (1992) (Symposium: Punishment); see also George C. Christie,
The Model ofPrinciples, 1968 DUKE L.J. 649 (1968).
141. Id.
142. Id.; see also MacCormick, N., Beyond the Sovereign State, 56 MOD. L. REV. 118(1993).
143. Id
144. Samuel Enoch Stumpf, Austin's Theory of the Separation of Law and Morals,
14 VAND. L. REV. 117 (1960-1961); see also John Dewey, Austin's Theory of Sovereignty, 9
POL. Sc. Q. 31, 31-52 (1894).
145. Id.
146. Id.
147. Supra note 1.
148. Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781, 789-90 (1994).
Describes how positivism reached its height in the writings of the English philosopher
John Austin. Explains how the developments of sovereignty where consolidated by the
Congress of Vienna and later by the Concert of Europe; a process where the European
states met and considered transnational matters of European policy and public order.
452
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III. THE THEORY OF SOVEREIGNTY AND INTERNATIONAL LAW
A. Sovereignty and InternationalObligationAfter the

First World War
A vast corpus of treaty law was generated between European colonizers
and non-European potentates. 149 These potentates were deemed to be
sovereign for the purpose of transferring their powers to their colonial
conquerors.150 However, in this process, in terms of control and authority,
vast sectors of the planet experienced the loss of sovereignty. 151 The
19th century development essentially made non-European states candidates
for admission into the initially established European system of
international law.152 Moreover, in the 20th century, as decolonization
accelerated, and as shown by the 2006 United Nations Member States
List,153 admissions to the international club of State sovereigns
accelerated.154 Today, according to the 2008 Non-member States and
149. See generally supranotes 101, 102 and 105.
150. Nele Matz, Civilization and the Mandate System under the League of Nations
as Origin of Trusteeship, 9 Max Planck Y.B. U.N. L. 47, 47-95 (2005); see also Anghie,
Antony, Colonialism and the Birth of InternationalInstitutions: Sovereignty, Economy,
and the Mandate System of the League of Nations, 34 N.Y. UNIV. J. INT'L L. & POL. 513
(2002).
151. Id.
152.
See generally CHARLES HENRY ALEXANDROWICZ, AN INTRODUCTION TO THE
HISTORY OF THE LAW OF NATIONS
IN THE EAST INDIES (Clarendon Press 1967).
(challenging the conventional wisdom that the roots of modem international law are
purely Eurocentric). This pioneering study draws attention to the practice and customs of
colonial expansion done through the currency of legal instruments with non-European
sovereigns. It should be noted that the treaties and practices between European and nonEuropean sovereigns were included as sources of Eurocentric International Law.
153. See Press Release, Department of Public Information, United Nations Member
States, U.N. Department of Public Information Press Release: News and Media Division
Press Release ORG/1469 (June 28, 2006) (documenting the expansion of sovereignty in
the world community).
154. Lim, Kok-ui, Taiwan's Case for United Nations Membership; Chang, Parris,
1 UCLA J. INT'L L. & FOREIGN AFF. 393 (1996-1997); see also Carroll, Anthony J.;
Rajagopal, B., The Casefor the Independent Statehood of Somaliland, 8 AM. U. J. INT'L
L. & POL'Y 653 (1992-1993); see also Nathaniel Berman, Sovereignty in Abeyance: SelfDetermination and International Law, 7 WIS. INT'L L.J. 51 (1988-1989); see also
Mazzawi, Musa, Self-Determination in International Law-A Study of the Rhodesian
Case, 1 POLY L. REV. 15 (1975); David Lloyd, who suggests that only the first two
criteria for statehood should be met: (1) having the traditional characteristics of a state;
and, (2) expressing the willingness to abide by the Charter, explains that "under the
Charter, when the United Nations refuses to recognize a state created in violation of
international law, its members are prohibited from recognizing that state. He adds that,
"the United Nations' support of the right of all people to freely determine their political
453
Entities List, there are over 200 sovereign states. 5 5 The 20th century
saw a greatly expanded idea of sovereignty, supported by the theoretical
underpinnings of legal theory. 156 One of these results was the idea that a
sovereign State had no clear limits to the exercise of its competence
without having consented to those limits.157 The failures of this somewhat
anarchical system resulted in the great tragedy of the First World War.158
Here actors acting under color of sovereign authority could mistakenly
set in motion events that would culminate in a war of global proportions.
The American President, Woodrow Wilson, promoted the idea of sovereign
cooperation via a League of Nations-an idea that was concurrently
supported by General Smuts of South Africa.15 9 But as it is explained in
Fenwick, the idea of a League of Nations would require some subordination
of sovereignty to international law.1 60 However, the sovereignty idea
still dominated negotiations and the League emerged with a unanimity
rule.161 If a single sovereign objected to a League determination on a
matter within its competence, then the League would be unable to act.
In this sense, the strong or thick version of sovereignty subverted the
emerging and difficult idea of subjecting sovereignty to international
obligation. The paralysis of the League is, in the judgment of some
theorists, one of the reasons that may have contributed to the Second
World War.
status and its failure to recognize a right of secession in general has been interpreted to
mean that the U.N. supports self-determination only in the decolonization process,
meaning that it the issue needs to be "integrally linked to the need to free peoples from
colonial and 'alien' subjugation." Lloyd proclaims the idea that "under international
law, one state's recognition of another state will not make the new state internationally
accepted, nor will one state's refusal to recognize another state keep the new state out of
the international community." See David 0. Lloyd, Succession, Secession, and State
Membership in the United Nations, 26 N.Y.U. J. INT'L L. & POL. 761, 793-94 (1994).
155. See Permanent Missions to the United Nations, U.N. ST/SG/SER.A/298 (2008)
(These statistics demonstrated the vitality of the expansion of sovereign members of the
world community.).
156. See generally supra note 1; see generally ANTONY ANGHIEJMPERIALISM,
SOVEREIGNTY AND THE MAKING
OF INTERNATIONAL LAW (2008)
(This study
demonstrated the use of the Eurocentric idea of sovereignty in non-European contexts.).

157. See generally id
158. Id; see generally JAMES JOLL, THE ORIGINS OF THE FIRST WORLD WAR (Longman
1987).
159. See generally F.S. NORTHEDGE, THE LEAGUE OF NATIONS: ITS LIFE AND TIMES,
1920-1946 (New York: Holmes & Meier 1986) (stating it is a concise story about the
creation of the League of Nations. Professor Northedge focuses on the reasons for the
failure of the of the League as a system of collective security.).
160. CHARLES FENWICK, INTERNATIONAL LAW 619-24 (1965) (discussing a short
introduction to international legal arrangements after the First World War).
161. See Oscar Schachter, Towards a Theory of International Obligation, 8 VA. J.
INT'L L. 300 (1968) (explaining a refined and systematic study of the theory of international
law obligations as a limiting source of authority on the conduct of sovereign states in the
international environment).
454
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SAN DIEGO INT'L L.L
B. Sovereignty and InternationalObligationAfter the

Second World War
The Second World War was conducted under the principle that a
sovereign may determine whether (and if so, what limits) it would honor
in the conduct of war. Hitler's Germany developed the idea that it was
involved in what was described as "total war."' 62 Under the guise of
sovereignty, there was the implicit claim that there were no rules from
the law of war that could constrain the prerogatives of the sovereignty.
Additionally, the Nazis were race-obsessed; and they viewed persons of
Jewish ethnicity as candidates for physical extinction. They viewed the
Slavic people as untermenschen (subhuman people) that could be treated
with extreme cruelty and used in whatever terms the Nazis thought were
in their own interest.' 64 Nazi absolutism developed the death camps in
which vast numbers of Jews and other ethnic "expendables" were
exterminated.' 65 It should be added that, outside of Nazi atrocities, the
growth of the totalitarian state-especially in Europe-had generated
monumental atrocities but often these were targeted at their own
citizens.166 Thus, it has been estimated that Russia has accounted for
some 60 million murders by government.' 67 A significant aspect of this
162.
See generally ALAN JOHN PERCIVALE TAYLOR, THE ORIGINS OF THE SECOND
WORLD WAR (Simon & Schuster 1996); see generally WINSTON CHURCHILL, THE SECOND
WORLD WAR (Golden Press 1960).

163. Id.; see also Korovin, Eugene, The Second World War and International Law,
40 AM. J. INT'L L. 742 (1946); see YEHUDA BAUER, RETHINKING THE HOLOCAUST (2001)
(reviewing an insightful overview and reconsideration of the Holocaust history and

meaning). Bauer uses his historiography and analysis to insist on an understanding of
the political foundations and decision within the State that generated and executed
policies creating the Holocaust. In a sense, it draws attention to the abuse of sovereignty.
164. See generally Leonid Rein, Untermenschen in SS Uniforms: 30th WaffenGrenadier Division of Waffen SS, 20 J. SLAVIC MIL.STUD. 2 (2007); see generally
ROBERTS. WISTRICH, HITLER AND THE HOLOCAUST (Random House Digital, Inc. 2001).
165. Id; see also Lawrence Douglas, Film as Witness: Screening Nazi Concentration
Camps before the Nuremberg Tribunal, 65 YALE L.J. 449, 449-81 (1995).
166. See ROBERT LIFTON & ERIC MARKUSEN, THE GENOCIDAL MENTALITY: NAZI
HOLOCAUST AND NUCLEAR THREAT (1990). This book brings the reality of the
psychopathological personalities and their role in the Holocaust or possible role in a

future nuclear Holocaust. In this sense, a realistic sense of sovereignty must account for
the personalities that are prone to genocide and mass destruction of human beings.
167.
See R. J. RUMMEL, DEATH BY GOVERNMENT (1994). These studies are an indication
of the unlimited abuse of sovereignty as a world order problem. This study with the
copious statistical data underlines the dangers of sovereignty in the modem era. In short,
the sovereign State with its implications for killing and mass murder needs some
455
statistic is identified with Stalinistic totalitarianism.168 At the end of

WWII, considerable disquiet was generated about the notion of the
abuse of State sovereignty and the scale of the horror that it generated.
The most important effort that clearly establishes limits to what government
can do is reflected in the work of the Nuremburg Tribunal. 169 In
Nuremburg, the defense that the defendants were merely following the
orders of the sovereign was rejected. 70 The court stressed that behind
the veil of the sovereign are the finite human agents of decisionmaking.'' A court of law could therefore penetrate the veil of the State
and sovereign and hold the decision makers accountable. In historic
terms, Nuremburg established a critical repudiation of the principle of
sovereign absolutism. It, in effect, repudiated legal theories of sovereignty
that sought to shield defendants from responsibility for mass murder.17 2
C. Threshold EmpiricalIdeas and Sovereignty
After the First World War, Harold Lasswell, a member of the Chicago
School, sought to reshape the study of politics as an empirical science.
He wrote two important books that were to reshape the thinking about
sovereignty in an empirical direction. The first of these books was his
pioneering study titled Psychopathology and Politics.173 If the study of
politics had been dominated by a historical/institutional focus of enquiry,
Lasswell deliberately shifted that focus to the individual human participants
in politics.17 4 Some of those individuals, who were in leadership roles,
whether covering themselves in the symbols of sovereign authority,
could bring to the role of political leadership psychological deficits and
dimension of control and prevention to avoid the absolutism that may lead to mass
murder and human destruction.
168.
Id.; see generally HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (Houghton
Mifflin Harcourt 1973).

169. See Winston P. Nagan, Racism, Genocide, and Mass Murder: Toward a Legal
Theory About Group Deprivation, 17 NAT'L BLACK L.J. 133 (2004) (rethinking the
boundaries of human rights, humanitarian law and the scope of intervention. Draws
attention on the problem that states have indulged in unlimited atrocity justified as an
exercise of sovereign absolutism seeking to generalize the major forms of human rights,
humanitarian depravation and the problems generated by a thick version of sovereignty
developing a general social process of contextual foundations).
170. Id; see also supra note 166; see also Opinion and Judgment of the Nuremberg
International Military Tribunal or the Trial of German Major War Criminals for War
Crimes and Crimes Against Humanity, Nuremberg, 30th September and 1st October,
1946.
171. Id.
172. Id.
173.
1930).
174.
HAROLD D. LASSWELL, PSYCHOPATHOLOGY AND POLUIcs 240 (Chi. Univ. Press
Id.
456
[VOL. 13: 429, 2012]

dysfunctions.' 75 These deficits could be a result of psychopathological

personality orientations.' 76 If this were true, some political leaders, who
were psychopathological in personality orientation, would constitute a
danger to the State and to world order.177 Therefore, there might be an
urgent necessity for the development of a form of preventive politics.
These insights penetrate the veil of sovereignty and anticipate the idea of
leadership accountability as well as restrains on the conduct of leadership;
in short, restraints on sovereignty.' 78 In order to make the theory more
credible there was a critical necessity to deconstruct the idea of the
sovereign State, which was insulated in the symbolism of an impenetrable
juridical curtain of non-transparency. Advancing this agenda required a
radical empiricism for unpacking the nature of the State to clearly
understand the nature of authority, control, and personality in the
organization and functions of the State. Lasswell's reconceptualization
of the State was that it was an empirically, observable manifold of events.
However, the study of the State as a manifold of events, which involves
individual participants, as well as participants in the aggregate, generated a
lifelong quest for an adequate theory and method of enquiry to completely
understand the interdependence and inter-determination of the individual
and society or more generally the interrelationships between personality
and culture.' 79 Lasswell saw, within the idea of the State as a manifold
of events, is the importance of the study of the individual personality
"upon the meaning of the political process as a whole."so Such interactions
between person and culture operate within what Lasswell termed an
"event manifold."' 8 ' Within the event manifold, Lasswell understood the
complexity of what he was suggesting:
[s]ince the psychopathological approach to the individual is the most elaborate
procedure yet devised for the study of human personality, it would appear to
175. Id.
176. Id.; see generally HAROLD D. LASSWELL, POWER AND PERSONALITY (1948); see
also HAROLD D. LASSWELL, THE ANALYSIS OF POLITICAL BEHAVIOR 195 (1948). On the
dynamics of personality see LASSWELL & MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY,
Vol. I, at 591-630 (1992); on the political personality see id. at 681-82; on the
connection of personality to political culture see id at 683-722.
177. Id.
178. Id.
179. Id.
180. Id.
181. Id.
457
of the relation between research

raise in the most acute form the thorny problem
182
on the individual and research upon society.
The idea of the State as a manifold of events is in effect an

appropriation from the Cambridge Logical School, particularly from the
philosophy of Alfred Whitehead. The idea essentially provided a flexible
architectural tool within which to, tentatively, identify and observe
events. According to Lasswell, because events were influenced by human
dynamism, such events were frequently an emergent dynamic of society
obscured by formalistic or reified ideas of State and sovereignty. Indeed,
Lasswell believed that to exclude the individual from understanding the
social dynamics of the collectivity was to misdirect legitimate inquiry.
According to Lasswell,
[i]t may be asserted at the outset that our thinking is vitiated unless we dispose
of the fictitious cleavage which is sometimes supposed to separate the study of
the "individual" from the study of "society." There is no cleavage; there is but a
gradual gradation of reference points. Some events have their locus in but a
single individual, and are unsuitable for comparative investigation. Some
events are widely distributed among individuals, like breathing, but have no
special importance for interpersonal relations. Our starting-point as social
scientists is the statement of a distinctive event which is widely spread among
human beings who occupy a particular time-space manifold. 183
Having demolished the rationality of a familiar dualism between the

individual and the group or the State, Lasswell in effect set his agenda
on the next important intellectual challenge: the individual in the global
environment. Lasswell sets out his thoughts in his now classic, World
Politics and PersonalInsecurity.18 4 This piece was a study in the social
sciences and established an important place for the individual in the
arena of world politics. By implication, the sovereign State clearly did
not monopolize this arena of action. The central idea was that the global
environment was a generator of meaning and understanding in terms of
symbols that penetrated sovereign lines. 85 Those symbols sometimes
influenced individual behavior because they could be perceived
symbolically as threats to security and thus productive of individual
anxiety.186 This work laid the foundations for a movement away from
the monopoly of the sovereign State as the exclusive subject of
international law, and the sovereign State as the monopolizer of
international relations.187 Clearly, the individual was also participating
182. Id.
18 3. Id.
184.
See HAROLD D. LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY 5-8,
28-39, 64-66 (Free Press 1965).

185. Id.
18 6. Id.
187. Id.
458
[VOL. 13: 429, 2012]

in this universe and thus reflected an important human subjectivity in

terms of the values implicated in the global system.'" These ideas were
not a direct attack on sovereignty, but a framework that later developed,
into a sophisticated empirical approach to mapping the salient features of
global processes critical to outcomes we describe as the sovereign nation
State.
D. Sovereignty and the U.N. Charter
The Charter of the U.N. is an instrument by which members both
assert and limit their sovereignty. The Charter is more than a formal
constitution for the international community.190 It is an outcome of the
world, social, and power processes. It was a reaction to World War IIto the experience of total war and the Holocaust.' 9 ' As a preventative
measure, the Charter placed limits on its members' sovereignty. 192
Yet, paradoxically, membership in the U.N. was an important means of
asserting sovereignty.193 An examination of the history and text of the
Charter reveals this tension.' 94 The Charter was written for the sovereign
nation-States of the world community.195 Many of those sovereigns had
been members of the U.N.'s predecessor, the League of Nations.'96 The
Charter also inherited a sizable body of international law that preceded
its entry into force. 97 Although the higher law aspirations of theorists
18 8. Id.
189. Id.
190. See United Nations, Charterof the United Nations, 24 October 1945, 1 UNTS
XVI, available at http://www.unhcr.org/refworld/docid/3ae6b3930.html; Fassbender,
Bardo The United Nations CharterAs Constitution of the International Community, 36
COLUM. J. TRANSNAT'L L. 529 (1998); see also Leland M. GOODRICH, ET AL., CHARTER
OF THE UNITED NATIONS 290-309 (3d ed. 1969) (for a discussion of the history of the
Charter of the United Nations and justifications as to why the Security Council is imbued
with such power.).
191. Id.; see also Richard Goldstone, The United Nations' War Crimes Tribunals:
An Assessment, 12 CONN. J. INT'L L. 227 (1996-1997); see also Henkin, Louis, Human
Rights andState Sovereignty, 25 GA. J. INT'L & COMP. L. 31 (1995-1996).
192. Id.; see also Ira Leitel, The United Nations Charter as a Restraint Upon a
Nation's Right to Wage War, 36 BROOK. L. REv. 212 (1969-1970); see also LELAND M.
GOODRICH, FROM LEAGUE OF NATIONS TO UNITED NATIONS. INTERNATIONAL ORGANIZATION
1, 3-21 (1947).
193. Id; see generally supra note 156.
194. Id.
195. Id.
196. Id.
197. Id.
459
such as Grotius, Vattel, and Pufendorf continued to have traction, the

tradition of Moser and Martens positivism was very much in evidence
since the Charter represented a form of sovereign consensual obligation.
The influence of this latter perspective is well illustrated by the
Permanent Court of International Justice in the Lotus Case from where
international law inherited one of its very important principles.199 The
PCIJ stated that, "restrictions upon the sovereignty of States could not be
presumed." 2 0 0 This suggested that some deference would have to be
given to the expectation that there are no presumptive limitations to
sovereignty in the international legal system. o0 It should also be noted
that the failure of the League of Nations was rooted in the principle that
202
any individual sovereign State could exercise a veto in the League.
The U.N. Charter, in effect, would have to respond to these and other
problems in defining the scope of sovereignty and the force of
international obligation. In this case, the Court articulated a powerful
version of strong or thick sovereignty indicating in effect that a sovereign
has to consent in order to be bound by an international obligation.2 03
The Court said that limits to the sovereignty of the State could not be
presumed.204 Thus, recognizing a limited form of international obligation
the Court stressed a presumption, which gave primacy of thick
sovereignty to the nation State. Another important example of practice
during this period emerged from the influential arbitral decision of the
Island ofPalmas Case where practice of international law strengthened the
definition of sovereignty. 20 5 In this arbitration, the arbitrator considered
that mere discovery as a basis for title to the sovereign dominion and
control of the territory was weak and could not defeat the assertion of
sovereignty of the State that exercised continuous control and authority
198. Id.
199. See S. S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 20-46, for
judicial authority for the idea of thick sovereignty. Its central proposition was that there
were no presumptive limits to sovereign authority in international law.
200. Id; see also Nagan and Hammer supranote 27.
201. Id.; see also Stephan Hobe, The Era of Globalisation as a Challenge to
InternationalLaw, 40 DuQ. L. REv. 655 (2001-2002).
202. Supra note 160; see also Stone, Julius, The Rule of Unanimity: The Practiceof
the Council and Assembly of the League ofNations, 14 Brit. Y.B. Int'l L. 18 (1933); see
also Williams, John Fischer, League of Nations and Unanimity, 19 Am. J. Int'l L. 475
(1925).
203. See generally id.
204. Id.
205. See Island of Palmas (Neth. v. U.S.), HAGUE CT. REP. (Scott) 83 (Perm. Ct. Arb.
1928) (establishing three important rules concerning island territorial disputes and
becoming one of the most highly influential precedents dealing with island territorial
conflicts).
460
[VoL. 13: 429, 2012]

over the land.206 In this sense, the arbitrator favored sovereignty as

exercised by effective power versus sovereignty as a nominal legalistic
assertion of titled by discovery. 20 7
IV. MODERN INTERNATIONAL SOVEREIGNTY
The Charter does not define sovereignty. The first words in the
Preamble of the Charter introduces the key terms: "We the Peoples of
the United Nations determined . . .,,208 The references to "Peoples" and
"Nations," when coupled with the term "determined," suggest that the
peoples of the world are the ultimate source of international authority.
Moreover, the peoples have "determined," or made an affirmative decision,
to adopt the Charter of the U.N. because of certain problems and conditions
of global salience. 20 9 The member States of the U.N. are sovereign; the
idea that sovereign legitimacy and authority under the Charter is derived
from the "Peoples" ultimately assumes that in the international community,
sovereign national authority is itself, in some degree, constrained by the
authority of the people it seeks to symbolize or represent. In short, the
tacit assumption of the authority of sovereignty is actually rooted in the
perspectives of all peoples in the global community who are not
objects of sovereignty but subjects of it. Roosevelt expressed, in 1941,
that the demands of the "Peoples" are expressed in four fundamental
principles on which the U.N. is premised: prevention of war, protection
of human rights and dignity, respect for social progress according to the
rule of law, and higher living standards and development for all. 10 The
206.
Id.; see generally MICHAEL FOWLER & JULIE MARIE BUNCK, LAW, POWER, AND
THE SOVEREIGN STATE: THE EVOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY
(Penn State Press 1995).

207. Id.
208. See U.N. Charter, pmbl. & art. 1-2, for an explanation of the scope of international
concern and the limitations on sovereignty, given the purposes of the U.N. to maintain
international peace and security and to develop friendly relations among nations based
on respect for principles of equal rights and self-determination of peoples. States are
subject to a good faith obligation and are required to settle disputes through peaceful
methods.
209. See Thomas M. Franck & Faiza Patel, U.N. Police Action in Lieu of War: "The
Old Order Changeth ", 85 A.J.I.L. 63, 66-67 (1991) (documenting the modifications and
permutations of sovereignty under the U.N. Charter).
210. See 9 FRANKLIN DELANO ROOSEVELT, THE PUBLIC PAPERS AND ADDRESSES OF
FRANKLIN D. ROOSEVELT: WAR-AND AID TO DEMOCRACIES 663 (The McMillan Co.,
1941) (commonly known as "Four Freedoms Speech;" proclaiming U.N. pledge to maintain
international peace and security, and to ensure that armed force shall not be used.
Proclaims UN's goal of reaffirming "faith in fundamental human rights [and] the dignity
461
concepts of "United" and "Nations" are to be understood conjunctively. 211

When read together, these terms seem to generate conflicts about the
nature of sovereignty. One such conflict is evident: the key operative
components of the U.N. are sovereign nations. Accordingly, the efficacy of
the U.N. should be measurable by examining the sum of its parts. It is a
body of coordinate sovereigns; its institutional authority cannot aspire to
more authority than that reposing in the will of the sovereigns
themselves. Yet, on some occasions, the U.N. has the authority to invoke
an institutional capacity broader than the sum of its sovereign parts. In
short, there is tension in the international constitutional system based on
principles of international concern and obligation on the one hand and
sovereign, territorial, and political independence on the other.
A. U.N. Charter'sMembership, Obligations,and Responsibilities
A further criterion that strengthens the principle that the U.N. Charter
is a sovereignty-dominated instrument is found in the membership
provisions of Chapter 11.212 Article 3 states that the original members of
the U.N. "shall be . . . states,"2 13 and Article 4(1) states that membership
in the United Nations is open to "all other peace-loving states which
accept the obligations contained in the present Charter".2 14 Although
membership in the U.N. is exclusively a matter of State sovereignty, an
institutional set of limits is imposed: the State must be "peace-loving,"
accept all Charter obligations, and accept the obligations of international
law as developed under the Charter. Likewise, Article 6, though it may
be exercised only in highly unusual or exceptional circumstances,
stipulates that a State may be expelled from the U.N. if it is a persistent
violator of the U.N. Charter.215 The scope of prohibited activity that
results in expulsion may be controverted. For example, expulsion can
entail the loss of recognition. Perhaps it might also impose a duty not to
and worth of the human person," and its pledge to "promote social progress," respect,
and the equal rights of men and women and of nations large and small).
211. 1 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE-PEACE 286 (H. Lauterpacht
ed., 8th ed. 1955) (asserting phrase "sovereign nation" entails two kinds of sovereignty
possessed by each State: dominium, or territorial sovereignty, which is supreme authority
over all persons, items, and acts within that state's territory, and imperium, or political
sovereignty, which is supreme authority over all citizens of that State, be they at home or
abroad).
212. U.N. Charter, Chapter II: Membership.
213. U.N. Charter art. 3 (stipulating that the original members of the U.N. shall be
states that participated in the United Nations Conference and have signed and ratified the
document).
214. U.N. Charter art. 4, para. 1.
215. U.N. Charter art. 6 (targeting a State that is a persistent violator of the Charter
and which State may be expelled upon a recommendation of the Security Council).
462
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SAN DIEGO INT'L LJ.
recognize an expelled entity, or its acts, in the context of international

relations and law. Whether such a procedure may be pushed to the limit
of regime replacement may be hotly disputed, but at least in theory, the
question of expulsion under Article 6 implicates the idea that the
sovereign equality of States is conditioned by U.N. Charter obligations
and that a persistent violation of these obligations erodes the authority of
the State. In short, the Charter supports and seeks to protect and advance a
particular form of good governance-oriented sovereignty. It also aims to
discourage other forms of government that seek to position sovereignty
above Charter obligations. There are, of course, other Charter based limits
on sovereignty. For example, Chapter IV of the Charter outlines the
composition and workings of the General Assembly and gives the
Assembly the power to highlight any issue by making it a matter for
international discussion and elaboration. Specifically, Article 10 states
that "[t]he General Assembly may discuss any questions or any matters
within the scope of the . . . Charter".2 16 In addition, and in accordance to
Article 13, the Assembly has the power to initiate studies and make
recommendations.2 17 This "promotional" Assembly function may shape
international expectations. For example the Advisory Opinion of the ICJ
in 1962, was influenced by General Assembly recommendations. 218 Such
recommendations may even create soft international law that might be
binding on sovereign States in limited circumstances.
216. U.N. Charter art. 10 (giving the General Assembly the competence to "discuss
any questions or matters within the scope of the .. . Charter").
217. U.N. Charter art. 13. The General Assembly has the competence to "initiate
studies and make recommendations for the purpose of . . . promoting international
cooperation . . . and . . . the progressive development of international law." This
competence extends to cooperation "in the economic, social, . . . educational and health
fields" as well as "human rights and fundamental freedoms."
218. Certain Expenses of the United Nations: Advisory Opinion, 1963 DUKE L.J.
304, 304-306 & n.1 1 (1963). This case effectually upholds a constitutional innovation
in the U.N. Charter-the so-called Uniting for Peace Resolution. The case validated
expenses expended under the power of the Resolution.
463
B. Security Council
The U.N. Charter Chapter V, Articles 24,219 and 27(3),220 and Chapter
VII, Article 39,221 confer to the Security Council special security-related
competences upon certain member States. The five permanent members
222
exercise what some scholars deem to be super sovereign powers.
These members have the special power of veto. Other elected members
have extra powers by virtue of membership in the Council, but do not
have unilateral veto power.223 The Security Council is given the primary
global responsibility for peace and security and has the competence to
enforce its decisions peacefully through Chapter VI, Articles 41,224 via
military force under Article 42,225 or by the use of force Chapter VII,
Article 51.226 It has the authority to make the determination as to
whether there exists "any threat to the peace, breach of the peace, or act
of aggression." 2 2 7 The powers of the Security Council are nevertheless
subject to certain inherent powers of sovereign States. Article 51 of the
Charter assures members "the inherent right of . .. self-defense . . . until
the Security Council has taken the measures necessary to maintain
219. U.N. Charter art. 24, para. 1. The Article "conferls] on the Security Council
[the] primary responsibility for ... maint[aining] . . . international peace and security."
220. U.N. Charter art. 27, para. 3. The decisions of the Security Council are affirmed by
majority vote with a concurrence of the five permanent members. See U.N. Charter art.
23, para. 1.
221. U.N. Charter art. 39. The Security Council has the competence to determine
the existence of a threat or breach to international peace and security or of an act of
aggression, and shall recommend actions consistent with Articles 41 and 42.
222.
LELAND M. GOODRICH ET AL., CHARTER OF THE UNITED NATIONS: COMMENTARY
AND DOCUMENTS 290-309 (3d ed. 1969) (discussing the history of the Charter of the
United Nations and offering justifications as to why the Security Council is imbued with
such power).
223.
BARDO FASSBENDER, U.N. SECURITY COUNCIL REFORM AND THE RIGHT OF VETO: A
CONSTITUTIONAL PERSPECTIVE (Martinus Nijhoff Publishers 1998); see also Michael P.
Scharf, Musical Chairs: The Dissolution of States and Membership in the U.N., 28
CORNELL INT'L L.J. 29 (1995); see also Louis B. Sohn, Voting Procedures in U.N.
Conferences for the Codification of International Law, 69 AM. J. INT'L LAW 310-53
(1975).
224. U.N. Charter art. 41 (dealing with measures to give effect to its decisions that
do not involve the use of armed force).
225. U.N. Charter art. 42. If the Security Council considers that the measures on
Article 41 are not effective it may take coercive action using air, sea, or land forces as
unnecessary to restore and maintain international peace and security.
226. U.N. Charter art. 51. The International Court of Justice has not interpreted the
terminology employed in Article 51 regarding a State's right to self-defense, especially
the term, inherent. Accordingly, it can be interpreted using one or more of the established
four methods.
227. Id.
464
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SAN DIEGO INT'L L.J
international peace and security." The term "inherent" is ambiguous. 22 8 It

seems to make reference to the notion that Article 51 itself codifies this
"inherent" right. "Inherent" may at the same time refer to rights, which
are not clearly articulated in Article 51 but instead exist antecedent to the
Charter. It is one of the most contested provisions in the entire Charter
and possibly in all of international law. 22 9 The Charter represents a
continuing constitutional process of conflict and collaboration with
respect to the basic architecture of international law and relations. 23 0
The contestation sometimes reflects a strong version of sovereignty, as
shown in the Lotus case, thus seeking to weaken the scope of international
obligation. 2 3 1 At other times, it is the strength of the international
obligation, supported by the critical powers within the U.N., which seems
228.
GEORG SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAW 153-54 (4th
ed. 1960). Literal approach is comprised of a "plain meaning"; contextual reading of
ambiguous words regardless of the drafter's intent. Systematic approach analyzes the
"four corners" of the document and seeks to assign the document consistent phraseology.
Intentional approach is comprised of a thorough analysis of the drafter's intent at the
time the document was signed. Functional or teleological approach considers the
function and goals of the document throughout the passage of time.
229. See generally Alexander Orakhelashvili,Legal Consequences of the Construction
of a Wall in the Occupied PalestinianTerritory, 11 J. CONFLICT & SEC. L. 119-39 (2006)
(Request for advisory opinion); Summary of the Advisory Opinion of 9 July 2004 The
ICJ writes in paragraph 139 of the opinion: "Under the terms of Article 51 of the Charter
of the U.N.:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the U.N.,
until the Security Council has taken measures necessary to maintain
international peace and security.
Article 51 of the Charter thus recognizes the existence of an inherent right of
self-defence in the case of armed attack by one State against another State.
However, Israel does not claim that the attacks against it are imputable to a
foreign State. . . . Consequently, the Court concludes that Article 51 of the
Charter has no relevance in this case.
See also Sean D. Murphy, Terrorism and the Concept of Armed Attack in Article 51 of
the UN. Charter,43 HARV. INT'L L.J. 41 (2002); see also Michael Glennon, The Fog of
Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations
Charter,25 HARv. J.L. & PUB. POL'Y 539 (2001-2002).
230. See Winston P. Nagan, Nuclear Arsenals, International Lawyers, and the
Challenge of the Millennium, 24 YALE J. INT'L L. 485 (1999). The lawfulness of the
threat or use of force using nuclear weapons was given a careful juridical appraisal in the
ICJ advisory opinion on this issue. A majority of the Court held that nuclear weapons
might be used consistently with Article 51 only where the survival of the State was at
stake under the prevailing State of international law conditions.
231. See generally supra notes 27 and 199.
465
to weaken the scope of sovereignty under the Charter. 2 32 The classic

tension between what counts as a matter of international concern under
the Charter and what is exclusively reserved to the domestic jurisdiction
of a State generates controversies in the actual practice of international
law and relations. When the U.N. Charter is examined as a process of
communication and collaboration, it can be found that the scope of
international obligation and domestic sovereign competence is and will
remain controverted.
C. The PracticeofInternationalLaw in the Twentieth
Century and Sovereignty
The early part of the twentieth century saw a breakdown in the state
system as the world was enveloped in the WWI. 23 3 There was a
recognition that sovereignty, unconstrained by some form of international
legal obligation, could lead the way into another global catastrophe.234
However, the idealism, which generated the League of Nations and its
modest mandate system for an extended legal obligation, could not
235
overcome the strength of State commitment to sovereign autonomy.
Thus, the League of Nations had a unanimity rule, which meant that a
single sovereign could block action in the League.236 The rise of European
totalitarianism accelerated the conflicts of the time precipitating a WWII. 2 37
After the WWII, there was a renewed resolve to strengthen the force of
international obligation and correspondingly constrain the scope of
sovereign absolutism. 2 3 8 The initial move in this direction was the
Charter of Nuremberg, an international agreement among the allies that
there would be a criminal justice response to the crimes committed by
the Axis Powers.239 We discuss this matter later in this entry. The
second significant development was the adoption of the U.N. Charter in
232.
See generally id; see also Hilla, John, The Literary Effect of Sovereignty in
InternationalLaw, 14 WIDENER L. REV. 77 (2008-2009).
233. Supra note 159.

234. Id.
235. See Ryan Goodman & Derek Jinks, Toward an Institutional Theory of
Sovereignty, 55 STAN. L. REV. 1749 (2003) (proposing a sociological model of sovereignty
that illuminates the ways in which global social constraints empower actors, including
states and the ways in which institutions, including the bundle of rules and legitimated
identities associated with state sovereignty constrain actors).
237. Supra note 162-63.
238. See generally id.; see generally supra notes 67 and 169..
239. Theodor Meron, From Nuremberg to the Hague, 149 MIL. L. REV. 107 (1995);
see also Nerone, F. Regan, The Legality of Nuremberg, 4 DUQ. U. L. REV. 146 (19651966).
466
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the form of a treaty obligation. 240 Consistent with the positivist view of
sovereignty, the Charter was essentially an agreement giving sovereign
consent to the compact. 24 1 The compact established certain major purposes
for international, legal, and political order. 242 A central element in the
Charter was that it had constitutional characteristics in a global setting.243
In addition, within this framework two dynamic themes were developed.
First, the Charter had to account for the sovereignty of its constituent
members and define the scope of that sovereignty in terms of the domestic
jurisdiction of the State over its internal affairs.244 This concept of
sovereignty was complemented by an effort to develop the jurisdictional
concept of international concern. If a matter was exclusive to domestic
jurisdiction, it was exclusively a matter of the primacy of sovereignty. If
a matter triggered the elements of international concern, then sovereign
autonomy would be shared, and, if necessary, constrained by the scope
of international jurisdictional concern.24 5 Notwithstanding this rethinking of
sovereign competences in the context of the political reality of global
interdependence, the technical instrument used to develop these expectations
came in the form of a treaty which States adopted thereby indicating
their sovereign consent to be bound by it.246
D. The Treaty Model After the U.N. Charter:Sovereignty and the
Control and Regulation of Global Spaces and Resources
One of the most important international instruments clarifying the
reach sovereignty and the scope of international concern is indicated in
the Declaration On Principles of InternationalLaw Concerning Friendly
Relations and Cooperationamong States in accordancewith the Charter
of the United Nations.247 This Declaration is not a Treaty.248 However,
240.
241.
Supra note 190-92.

Id.
242.
Id.
243.
244.
Id.
Id.
245.
Id
246. Id.; see also Randall, Kenneth C., Universal Jurisdiction under International
Law, 66 TEX. L. REv. 785 (1987-1988); see also Stephen D. Krasner, The Hole in the
Whole: Sovereignty, Shared Sovereignty, and InternationalLaw, 25 MICH. J. INT'L L.
1077 (2003-2004).
247. See United Nations, Declarationon Principles of International Law Concerning
Friendly Relations and CooperationAmong States in Accordance with the Charterof the
United Nations, G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 18, U.N.
Doc. A/8082, (Oct. 24, 1970). This document strengthens the sovereignty foundations of
467
it is a Declaration based on the foundational principles of international

constitutionalism found in the Charter. 2 49 The Declaration expresses, in
more concrete ways, matters that constrain States because these are matters
of international concern, and protects State sovereignty from inappropriate
interference, again because such interference also constitutes a matter of
international and constitutional concern.2 50 It could be suggested that the
Declaration is an effort to codify the principle of sovereignty under the
rule of law. Additionally, the breath of the Declaration, and its foundation
in any international law obligation that requires cooperation in promoting
the values of the U.N. Charter, suggests that the Declaration, read in the
light of the U.N. Charter and the International Bill of Rights, is a
development in entrenching expectations of a global constitutional
design. Indeed, prior to the adoption of the U.N. Charter, there already
existed important multilateral treaties, which refined the reach of
sovereign competence and established by agreement frameworks of
collaborative competence over matters of transnational salience. 2 5 1 The
Chicago Convention on International Civil Aviation is another international
treaty that has an effect on sovereignty.252 When sovereignty ideas were
developed, travel over air-space had not been imagined. The development
of air travel required some rethinking of the ideas of territorialism,
boundaries, regulation, and cooperation. Technological advances reaching
into space opened up another dimension of sovereignty and international
concern. Logically it could be said that the sovereign States borders
extend geometrically as far as the State can exercise its sovereign
powers in outer space and that there is a finite rational limit to the
indefinite expansion of sovereignty into space. The Outer Space Treaty
of 1967 is a recognition that whatever height above the Earth we
designate, the space above that will be the common property of mankind's
international legal order by restricting interference with the appropriate internal

functioning of a State and at the same time insists that the rules that constraint
inappropriate State relations are in effect a positive duty under international law to
cooperate in promoting friendly relations and cooperation.
248. Id; see also Robert Rosenstock, The Declarationof Principlesof International
Law ConcerningFriendlyRelations: A Survey, 65 AM. J.INT'L L. 713, 713-35 (1971).
249. Id.
250. Id.
251. See generally MAJOR PEACE TREATIES OF MODERN HISTORY 1648-1967 (Fred
L. Israel ed., 1967).
252. See Chicago Convention on International Civil Aviation, Dec. 7, 1944, ICAO
Doc. 7300. Establishes a regime concerning the uses of air-space with a determination of
areas of air-space that are exclusive to the sovereign State and areas which are essentially
exceptions to permit shared used and shared competences between the parties. Is an
illustration of the use of a traditional idea of sovereignty and its malleability in the face
of technological advances.
468
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shared inheritance.253 Its first priority is the peaceful uses of space and a
high priority is to keep weapons of mass destruction from been deployed
in space.254 The Treaty also prohibits testing nuclear weapons in space.255
It also declares that celestial resources such as the Moon or accessible
planets are a common heritage of mankind.256 The Treaty seeks to secure a
demilitarization of space and to encourage scientific discovery.257
E. Sovereignty and the Spaces Relating to the Ocean's and
PolarRegions of the World
The post-war period was significantly influenced by the development
of scientific technologies that permitted the appropriation of resources
not traditionally included within the boundaries of the sovereign state.
Among these resources were the seas and the Polar Regions. The
Geneva Conventions on the Law of the Sea of 1958, which expanded
and constrained sovereignty by agreement, was a major instrument to the
It added to the
territorial dimensions of sovereign competence.25
territorial competence of the State adjoining continental shelf and
clarified the principle of the freedom of the seas as an exercise of
sovereignty over the uses of the deep-sea ocean.25 9 It also sought to
limit excessive exploitation by limiting sovereignty rights in order to
conserve the living resources of the high seas.
Another important
253. See Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodiesi, G.A. Res.
2222 (XXI), U.N. GAOR, 21st Sess., Supp. No. , U.N. Doc. A/6431, (Dec. 19, 1966)
(XXI 1967). It is another Treaty that reflects upon the impact of technological advances
on national sovereignty and international obligations. It provides for the establishment of
the idea that the space that is technologically proximate to the Earth space community
should be part of mankind's shared inheritance.
254. Id. Annex and Article IV.
255. Id.
256. Id. Article 1.
257. Id. Annex and Article I, IV, and XI.
258. Geneva Conventions on the Law of the Sea, Apr. 29, 1958, A/CONF. 131L.58,
Off. Rec. vol. 2 146; (UNCLOS I; Convention on the Territorial Sea and the Contiguous
Zone, Apr. 29, 1958, 516 U.N.T.S. 205; Convention on the High Seas, Apr. 29, 1958,
450 U.N.T.S. I1; Convention on Fishing and Conservation of the Living Resources of
the High Seas, Apr. 29, 1958, 559 U.N.T.S. 285; Convention on the Continental Shelf,
Apr. 29, 1958, 499 U.N.T.S. 311)
This Treaty expanded territorial sovereignty so that territories under the oceans in
different ways were brought within the sovereign powers of the State clarifying the
status of the territorial Sea and the contiguous zone.
259. Id.
260. Id
469
resource was in the region of the Antarctic. 2 6 1 The Antarctic Treaty

System of 1959 recognizes that the presence on the Antarctic of nation
States' scientific teams occupying parts of this continent would exercise
a limited form of occupancy/possessory rights consistent with the flag
carried by the research team. 2 62 The recognition of these rights required
corresponding obligations. The presence of these teams was limited to
peaceful activities, stressing the freedom of scientific inquiry and the
distribution of results. Subsequent developments had concerned matters
of agreement on conservation regulating mining activity and environmental
protection. 26 3 Another important treaty that shaped sovereignty in inclusive
spaces and resources is the most recent Convention on the Law of the
Sea of 1982.264 This document extended the territorial sea limits of the
State, the contiguous zone adjoining the State, established a 200 nautical
mile exclusive economic zone for the State, and clarified the reach of
sovereign authority over the continental shelf. 2 6 5 It was confronted with
how to control and regulate certain resources on the high seas such as
the manganese nodules, which contain many of the critical minerals for
the modern industrial State and exist in high volume on the deep-sea
ocean floor.2 66 The practical problem was that under the traditional law
of the sea, a State could use its technology to exploit those common
resources for itself. States that monopolize the technology of deep-sea
mining could exploit these resources solely for their own benefit.2 67 The
Convention sought to solve this problem by creating a Deep Seabed
261. See generally ARTHUR H. WESTING, GLOBAL RESOURCES AND INTERNATIONAL

CONFLIcr: ENVIRONMENTAL FACTORS IN STRATEGIC POLICY AND ACTION (Stockholm
International Peace Research Institute, Oxford Univ. Press 1986).

262. Antarctic Treaty, Dec. 1, 1959. This Treaty recognizes that the presence on
the Antarctic of nation States' scientific teams occupying parts of this continent would
exercise a limited form of occupancy/possessory rights consistent with the flag carried
by the research team. The recognition of these rights required corresponding obligations
like the limited presence for peaceful activities. It stresses the freedom of scientific
inquiry and the distribution of results. See also Steven J. Burton, New Stresses on the
Antarctic Treaty: Toward InternationalLegal Institutions GoverningAntarctic Resources, 65
VA. L. REV. 421 (1979).
263. Id.
264. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 397 (1982) (UNCLOS III). Significant international effort to change and
modify the sovereign competence of the State over certain aspects of the spatial
dimension of sovereignty. It extended the territorial sea limits of the State, the contiguous
zone adjoining the State, established a 200 nautical mile exclusive economic zone for the
State and it clarified the reach of sovereign authority over the continental shelf.
265. Id.
266. Id; see also Barbara Ellen Heim, Exploring the Last Frontiersfor Mineral
Resources: A Comparison of International Law Regarding the Deep Seabed, Outer
Space, andAntarctica,23 VAND. J. TRANSNAT'L L. 819 (1990-1991).
267. Id.
470
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Authority, which could license mining in return for fees which could
then be distributed through the U.N. system.268
V. CONTEMPORARY JURIS CONSULTS RELATING TO THE LEGAL
THEORY ASPECTS OF SOVEREIGNTY: U.K. SCHOLARSHIP
A. The Work and ContributionsofH.L.A. Hart

One of the most important contributions to the jurisprudence of
sovereignty is reflected in the work of the former Professor of
Jurisprudence in Oxford, H.L.A. Hart. 269 Hart provided a critical
deconstruction of the Austin Theory of Sovereignty as a foundation of
jurisprudence. 270 His critique exposed the problem that Austin system of
orders back by threats totally obliterated one of the most central
concepts in jurisprudence, the concept of obligation; coercion may
oblige one to act in a certain way but in no way can it suggest that one
has an obligation to act in such a manner.27 1 It would seem that the
concept of obligation has an affinity with the idea of authority.2 72 Austin's
sovereignty functions in the absence of authority. 273 Thus, implicit in
the Hart view was the idea that authority and obligation were central to
the idea of law and the idea of the governing authority of law.274 Hart
substituted for the idea of sovereignty a complex structure of interdependent
rules. For him law was the union of primary and secondary rules, and
among the secondary rules was a master secondary rule of recognition,
268. Id.; see also Ian Bezpalko, The Deep Seabed: Customary Law Codified, 44
NAT. RESOURCES J. 867 (2004); see also Jan Schneider, Codification and Progressive
Development ofInternationalEnvironmentalLaw at the Third United Nations Conference on
the Law of the Sea: The Environmental Aspects of the Treaty Review, 20 COLUM. J.
TRANSNAT'L L. 243 (1981); see also Allen, Philip A. III, Law of the Sea: The Delimitation of
the Maritime Boundary between the United States and the Bahamas, 33 U. FLA. L. REV.
207 (1980-1981).
269. Supra note 17.
270. Id; see also H.L.A. Hart, THE CONCEPT OF LAW (1961) (Draws attention to
this and other weaknesses in Austin's theory. He therefore reconstructs the foundations
of a legal system in terms of a more complex architecture of different kind of legal rules.
Within the system of rules, there is a master "secondary rule of recognition" that permits
us to identify what is law and what is not.).
271. Id.
272. Id.; see also H. L. A. Hart, Are There Any NaturalRights?, 64 PHIL. REV. 17591(1955).
273. Supra note 10.
471
which identified valid rules and laws.275 It can be inferred that Hart's
model was partly inspired by the significant voting right cases in South
Africa in the 1950's.276 In the case of Harris v. Donges of 1952, the
Appellate Division of the South African Supreme Court provided a
novel clarification of the scope and limits of Parliamentary
Sovereignty.277 In a prior decision, the Court had ruled that Parliament,
bicamerally, had passed a law to deprive black South Africans of their
voting rights.278 After the war, Parliament, again using the same
procedure, stripped colored voters of their voting rights. This time the
court ruled that Parliament had acted unconstitutionally.27 9 The theory
of the court was that the prior precedent had not asked the right
questions concerning what is "Parliament" and what is an "act of
Parliament." 2 80 The answer to the question was, firstly, that entrenched
clauses of the South African Constitution required the Parliament to sit
unicamerally and that it would be able to terminate constitutional rights
with a two thirds majority. 28 1 The sovereignty of Parliament was subject
to a pre-existing rule of recognition determining what Parliament was
and how it was to function in order to exercise sovereign powers. 2 8 2
Hart's insight was probably inspired by the judgment of the Appellate
Division of the South African Supreme Court.
B. The Contributionsoflan Brownlie
Brownlie provides two important chapters on the legal aspects of
sovereignty. He deals with sovereignty as a subject of international law
and examines the legal criteria for determining statehood as well as
various aspects of continued statehood, including the complex processes
of the recognition of States and governments and the complex
275. Id.
276. Id.; see also J. C. Hicks, The Liar Paradoxin Legal Reasoning, 29 CAMBRIDGE
L.J. 275, 275-91 (1971).
277. Harris v. Donges, [1952] 1 T.L.R. 1245. Coloured voters deprived of their
voting rights relying on an earlier decision that determined the idea of Parliamentary
Sovereignty as the supreme expression of law making in the state. Its constitutionality
was challenged by suggesting that the wrong questions were addressed.
278. Id.; see generally IAN LOVELAND, BY DUE PROCESS OF LAW?: RACIAL
DISCRIMINATION AND THE RIGHT TO VOTE IN SouTH AFRICA 1855-1960 (Hart Publishing
1999).
279. Id.
280. Id.
281. Julious Lewin, Power, Law, and Race Relations in South Africa, 30 POL. Q.
389, 389-99 (1959).
282. Id.; see also Hamish R. Gray, The Sovereignty of Parliament Today, 10 U.
TORONTO L.J. 54, 54-72 (1953).
283. See generally supra note 270; see also Denis V. Cowen, Agenda for
Jurisprudence,49 CORNELL L. Q. 609 (1963-1964).
472
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permutations of the territorial aspects of sovereignty.284
One aspect of
sovereignty that requires clarification is the extent of the definition of

the reach of territorial sovereignty. 285 This would have to take into
account the existence of other aspects of territory in the global community
and their precise legal statuses, for example, are they trust territories; are
there territories that are classified as res nullius or res communis.286
Territory weaves into the juristic concept of jurisdiction and the extent
of jurisdiction. 287 Sovereignty and territory also have an overlapping
meaning with the civil law idea of ownership and title. 288 International
lawyers distinguish this issue as the difference between imperium and
dominium.289 The idea of title and imperium reflects interminable problems
and conflicts, such as the conflict between India and Pakistan over
Kashmir 290 and the status of Taiwan, which exists somewhat autonomously
from the People's Republic of China but which the PRC claims is an
integral part of China.29 1 In the 1960's China invaded India because it
rejected the boundary understandings that India accepted as a colonial
inheritance.292 The problems of sovereignty and jurisdiction also raise
284. Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 57-201, 105-67
(7th ed. 2008) (outlining many problems in which there are legal variations on the way
sovereign title is exercised. It provides an overview of the imperium exercise over the
sub-soil, air spaces and internal waters as well as an analysis concerning the transfer and
acquisition of territory and a careful legal appraisal of the way in which title affects the
creation and transfer of territorial sovereignty).
285. Id.
286. Christopher C. Joyner, Legal Implications of the Concept of the Common
Heritage of Mankind, 35 INT'L & COMP. L. Q. 190-99 (1986); see also Ian Brownlie,
Maintenance of InternationalPeace and Security in Outer Space, 40 BRIT. Y.B. INT'L L.
1 (1964).
287. Id
288. See generally JOHN HENRY MERRYMAN & ROGELIO PlREZ-PERDOMO, THE CIVIL
LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA
(Stanford Univ. Press 2007); see also Emeka Duruigbo, Permanent Sovereignty and
Peoples' Ownership of NaturalResources in InternationalLaw, 38 GEO. WASH. INT'L L.
Rev. 33 (2006); see also L. Benjamin Ederington, Propertyas a NaturalInstitution: The
Separation of Propertyfrom Sovereignty in InternationalLaw, 13 AM. U. INT'L L. REV.
263 (1997-1998); see also Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.
Q. 8 (1927-1928).
289. Id.
290.
Id.; see generally SUNIL KHILNANI, THE IDEA OF INDIA (Macmillan 1999).
291.
Id.; see also MARK ANTON ALLEE, LAW AND LOCAL SOCIETY IN LATE IMPERIAL
CHINA: NORTHERN TAIWAN INTHE NINETEENTH CENTURY (Stanford Univ. Press 1994).
292.
Id; see generally JONATHAN HOLSLAG, CHINA AND INDIA: PROSPECTS FOR PEACE
(Columbia Univ. Press 2010); see also Q. CHINA, STATE, SOVEREIGNTY, AND THE PEOPLE:
A COMPARISON OF THE "RULE OF LAW" IN CHINA AND INDIA (Cambridge Univ. Press
(2009).
473
complexities where the sovereign concedes a long-term control to another

sovereign, such as the status of Guantanamo. Concepts of possession
and use such as the status the U.S. enjoyed in Panama also required a
complex understanding of the law of possession and the scope of uses.
Brownlie outlines many problems in which there are legal variations on
the way sovereign title is exercised and provides an overview of the
imperium exercise over the sub-soil, air spaces, and internal waters. He
also discusses concerns about the transfer and acquisition of territory,
providing a careful legal appraisal of the way in which title affects the
creation and transfer of territorial sovereignty. Brownlie also explores a
number of concepts derived from the civil law dealing with scope of
property and entitlements including the role of prescription and novation
and clarifies the principle that territorial sovereignty cannot be exercised
over territory as a consequence of conquest by force of arms. Brownlie's
approach is firmly rooted in the positivist tradition of examining
international legal phenomena through the lens of operational practice.
C. The ContributionsofNico Schrifver andAnthony Carty
A more ambitious study from a theoretical point of view is found in
the work of Nico Schrijver. Schrijver's take off point is the General
Assembly Resolution, which articulates the idea of permanent sovereignty
over natural resources,2 93 a claim that grew out of the processes of
decolonization and represented a claim to thick sovereignty by new
States over their natural resources.294 This claim, which evolved into the
broader claims for a new international economic order, was contested by
foreign investor States who disputed its currency.295 Nevertheless, it has
had traction in context of environmental and sustainable development,
which along international trade and investment, have been undergoing
modification and change.
In the context of the theory of sovereignty, one of the most original
contributions can also be found in the work of Anthony Carty. 29 6 Carty
examined international law generally with an important preference for
293. See generally Nico Schrijver, SOVEREIGNTY OVER NATURAL RESOURCES

(1997). The take off point is the General Assembly Resolution articulated in the idea of
permanent sovereignty over natural resources which grew out of the processes of
decolonization and represented a claim of thick sovereignty by new States over natural
resources. It has traction in context of environmental and sustainable development.
294. Id.
295. Id.
296. See generally ANTHONY CARTY, PHILOSOPHY OF INTERNATIONAL LAW (2007);
ANTHONY CARTY, PHILOSOPHY OF INTERNATIONAL LAW (Edinburgh Univ. Press 2007)
(examining international law generally with important preference to sovereignty mainly
in the context of the development of practice and theory in the UK.).
474
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sovereignty mainly in the context of the development of practice and

theory in the U.K. He explained that the inheritance of nineteenth
century scholarship was really directed by statesmen seeking to reinforce
the importance of the rule of law.297 He also notes that leading statesmen of
the time were more concerned about enhancing British greatness by
force and influence of British power and resources. Further, English
international lawyers tended to accept the basic positivist position, which
separated law from morality and made the analysis of law as it is the
most prestigious task of an international lawyer.298 This was an
approach that also appealed to the canons of the practice of law because
it underscored the objectivity of law. 299 More recently, there has been
considerable ferment about the foundations of international law and
sovereignty. He draws attention to Professor Allott's work, which
perhaps inspires him about a more penetrating concept of "international
society." 3 o Allot and Carty were clearly influenced by the New Haven
School's concept of international society-there is a responsible network of
individuals interacting in a web of international interpersonal relations.301
Carty's describes his suggestion as a preliminary, introductory outline,
which is "the bare bones of an ethnographic phenomenology of human
conduct in which communication with words are critical".302 As
suggested, we later seek to produce a map of what this ethnographic
phenomenology of human conduct might look like.
297.
298.
Id.
Id; see also ANTHONY
CARTY, English ConstitutionalLaw from a Postmodernist

Perspective, in DANGEROUS SUPPLEMENTS: RESISTANCE AND RENEWAL IN JURISPRUDENCE
(Peter Fitzpatrick ed., Duke Univ. Press 1991).

299. See generally id.; see also Anthony Carty, CriticalInternationalLaw: Recent
Trends in the Theory ofInternationalLaw, 2 EUR. J. INT'L L. 66 (1991).
300. See generally id.; see also Anthony Carty, Social Theory and the "Vanishing" of
International Law: A Review Article, 41 INT'L & COMP. L. Q. 939-45 (1992); see
generally PHILIP ALLOTT, New InternationalLaw: The First Lecture of the Academic
Year 20, THEORY AND INTERNATIONAL LAW: AN INTRODUCTION 107 (Colin Warbrick &
Anthony Carty eds., 1992).

301. Id; see also Koji Teraya, For the Rights ofNobodies: The GlobalisingTension
between Human Rights and Democracy, 38 VICTORIA U. WELLINGTON L. REv. 299
(2007); see also Simpson, Gerry, Imagined Consent: Democratic Liberalism in

InternationalLegal Theory, 15 J. AUSTL. Y.B. INT'L 103 (1994).
302.
See generallysupra note 300.
475
D. The Work and ContributionsofNeil MacCormick

and Philip Allot
Another important contribution to sovereignty is the work of Neil
MacCormick. MacCormick's theory is not as far reaching as that of
Carty's. His focus is on the European compact and the subordination of
European sovereignties to that compact.3 0 3 He raises the question of
whether there is a reconfiguration of Europe. The challenge is how to
effectively conceptualize this development. MacCormick thinks that
conceptualization as a European commonwealth might help. In a sense,
it is the implications of moral and political values that might make this
appealing. It seems to stimulate active political participation or the ideas
of popular self-management and idea that self-government and participatory
democracy would be part of such an understanding. Additionally,
MacCormick grapples with the problem of commonwealth on one side
and nationalism on the other. Modem European identity reflects strong
versions of national solidarity, but the question that remains open is
whether a pan European identity may moderate and constrain appeals to
more parochial national identities. At the back of this question is the
extent to which nationalism is central to the idea of sovereignty in the
nation State and whether the new European experiment will transcend
that. The MacCormick approach also implicitly suggests the need for a
better conceptualization of the foundations of sovereignty and international
legal order. Allot is one the most theoretically advanced in thinking
about the theory of international law from the perspective of a U.K.
academic. 30 4 Although there are important differences in the way he
conceptualizes central ideas relating to society as an important predicate
for constitutionalism and the well-being in the global community, his
approach is the closest of a U.K. scholar to the approach of the New
Haven School. His stress on the interrelationship between society and
the construction of a constitutional order on a global basis is a significant
advance in British legal theory and, as mentioned before, Allott's work
303. NEIL MACCORMICK, QUESTIONING SOVEREIGNTY: LAW STATE AND NATION IN

THE EUROPEAN COMMONWEALTH (1999) (focusing on the European compact and the
subordination of European sovereignties to that compact raising the question of there is a

reconfiguration in Europe that impacts upon sovereignty. He sees the challenge
intellectually as how to effectively conceptualize this development. He thinks that
conceptualization as a European commonwealth might help.).
304. PHILIP ALLOTr, EUNOMIA: NEW ORDER FOR A NEW WORLD (1990). One of
the most theoretically advanced in thinking about the theory of international law from
the perspective of a UK academic. Although there are important differences in the way
he conceptualizes central ideas relating to society as an important predicate for
constitutionalism and for the outcomes of well-being in the global community his
approach is the closest of a U.K. scholar to the approach of the New Haven School.
476
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inspired other scholars to a more penetrating concept of international

society. Baeyens shows how recent developments in European thinking
on Pan-European governance suggest a skepticism of the tendency to
function within the EU on an inter-sovereignty, intergovernmental model.305
The Shadow European Council takes the position that is meant to
transcend MacCormick's concerns with national parochialism. 306 Baeyens
explains how their recommended Action Plan contains an investment
program for the transformation of the European economy, a federal act
for economic governance, and a change in European mechanisms for banks
with a more global vision.30 7 European leaders suggest that European unity
may represent "the best hope the human race has for bring the world
together around the twin challenges of global warming and enacting a
worldwide economy that can provide a descent standard of living for 6.5
billion people" and they conclude with the question: "if Europe doesn't
lead, who will?" 308 The ideas that are emerging have an affinity with the
approach of Allot as well as the approach of the New Haven School.309
305.
See generally ANTONi KUKLINSKI, The Renaissance of European Strategic
Thinking, LOWER SILESIAN FOUNDATION FOR REGIONAL DEVELOPMENT (Paper for the
second Lower Silesian Conference, Jun. 16-19, 2011), http://forum.pl/upload/tmle/file/

Eurpa%20Quo%OVadis%201SBN.pdf.
306. Id.; see also for example Wolfgang Streeck, Citizenship Under Regime
Competition: The Case of the "European Works Councils" (MPIfG Working Paper 97/3
Mar. 1997).
307. See generally Herman Baeyens, European StrategicPlanning in the XX Century,
in EUROPE-THE GLOBAL CHALLENGES VOL. 1 (AntoniKuklinski et al. eds., 2005),
http://www.clubofrome.at/archive/pdf/kuk-twinl.pdf. In this paper Baeyens focus on
European strategic planning in the 21st century to consolidate the European Union and
the implications for its enhance role in world affairs. Baeyens focuses on developing the
strategies for this possible future. These views would seem to significantly transform
sovereignty as it is currently understood. In this paper Baeyens focus on European
strategic planning in the 21st century to consolidate the European Union and the
implications for it's enhance role in world affairs. Baeyens focuses on developing the
strategies for this possible future. These views would seem to significantly transform
sovereignty as it is currently understood.
308. Id.; see also Steven Hill, My Lunch at the European Commission: "Why is
Europe Losing the Public Relations Battle to China?",Soc. EUR. J. (2010), availableat
http://www.social-europe.eu/2010/1 2/my-lunch-at-the-european-commission-why-iseurope-losing-the-public-relations-battle-to-china/.
309. See generally supra notes 42 and 300; see also Richard A. Falk, Castingthe
Spell: The New Haven School of InternationalLaw Jurisprudencefor a Free Society:
Studies in Law, Science, and Policy by HaroldD. Lasswell & Myres S. McDougal, 104
YALE L.J. 7, 1991-2008 (1995); see also W. Michael Reisman, The View from the New
Haven School of International Law, Proceedings of the Annual Meeting (American
Society of International Law), Vol. 86, pp. 118-25 (Apr. 1-4, 1992).
477
E. The Contributionsof Colin Warbrick and Stephen Tierney

Warbrick and Tierney have contributed to the idea of sovereignty in
the international legal community from a contemporary perspective.
They set to grapple with the adequacy of the traditional concept of
sovereignty, as the way in which international law defines its
fundamental target community of sovereign nation states. 310 The state of
sovereignty, whose meaning is still influenced by Austin, cannot provide
an adequate explanation of the effective role that international law play
in both domestic and international legal order. 3 11 There is a recognition
that international law reflects an expansion of the idea of authority and
sovereignty cannot account for this as a theoretical matter.3 12 This work
notes the growth of institutions of international salience that serve as the
foundations of authority behind much of modern international law. The
issue they confront is that they still try to understand the changing
character of authority in modern international law within the limits of
the idea that sovereignt is still the most reliable source of law based on
They suggest that the boundaries of legal order
authority and control.
internationally have shifted from rigid territorial sovereignty to the
exercise of sovereign competence in functional terms.314 Additionally,
following traditional positivism, they argue that the transnational source
of authority in these institutions involves a transfer of sovereign authority
that is voluntary; but sovereign authority still ultimate authority."'1 This
raises the question about whether the quantum of sovereignty voluntarily
transferred to the international level requires a significant rethinking of
sovereignty itself in its relationship with international law. The difficulty
with the sovereignty/authority assumption is that there is a single locus
of authority-a criterion of the validation of a law as authoritative.
310. See generally TOWARDS AN 'INTERNATIONAL LEGAL COMMUNITY'? THE
SOVEREIGNTY OF STATES AND THE SOVEREIGNTY OF INTERNATIONAL LAW (Colin Warbrick
& Stephen Tierney eds., 2006). It sets as a primary task the effort to grapple with the
adequacy of the traditional concept of sovereignty, as the way in which international
defines its fundamental target community: a community of sovereign nation states. It
also recognizes that sovereignty, whose main meaning, still influenced by Austin, cannot
provide an adequate explanation of the effective role that international law, plays in both
domestic and international legal order. It sets as a primary task the effort to grapple with
the adequacy of the traditional concept of sovereignty, as the way in which international
defines its fundamental target community: a community of sovereign nation states. It
also recognizes that sovereignty, whose main meaning still influenced by Austin cannot
provide an adequate explanation of the effective role that international law, plays in both
domestic and international legal order.
311. Id.; supra note 1.
312. Id.
313. Id.
314. Id.
315. Id.
478
[VoL. 13: 429, 2012]

There is a clear and prudent recognition that the international legal

system is in transition and thus, the traditional international legal community
of sovereign States model is no longer a serviceable model. 16 There is a
need for a new paradigm. 317 The phenomenon of globalization has made
the traditional boundaries of the sovereign State porous.3 18 This
contribution is an important step in attempting to get a better description
of the global social process, which includes a changing role of State
sovereignty. The concept of contextually mapping this process and
understanding its role in the context of the global power and constitutive
process provides empirical insights into the foundations of international
law in an age of globalization.31 9
VI. SOVEREIGNTY, INSTITUTIONAL COMPETENCE AND U.S. PRACTICE
A. The Background to the Development of the Sovereignty Idea in

US. Legal Practiceand Scholarship
The United States was a new State and one whose creation stood as a
challenge to the international status quo dominated by European
sovereigns. 320 As a consequence, the earlier American State reflected
certain cautions about its relations with States whose political orientation
could be seen as antagonistic to the Republican/Democratic values that
emerged from the American Revolution. In this sense, there is an emergent
perspective that gives strength to both, the value of isolationism 321 as
316.
See J. L. Cohen, Whose Sovereignty? Empire Versus InternationalLaw, 18
ETHICS & INT'L AFF. 1-24 (2004); see also W. Michael Reisman, Sovereignty and
Human Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 866-76
(1990).
317. Id; Nagan and Hammer supra note 27; see also Christoph Schreuer, The
Warning of the Sovereign State: Towards a New Paradigmfor InternationalLaw, 4 EUR.
J. INT'L L. 447 (1993); see also Philippe Cullet, Differential Treatment in International
Law: Towards a New Paradigmof Inter-state Relations, 10(3) EUR J INT'L L. 549, 54982 (1999).
318. See generally id.
319. Id.; see also Winston P. Nagan & Craig Hammer, The Rise of Outsourcing in
Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive
Process, 60 ME. L. REV. 429 (2008); see generally Douglas Torgerson, Promoting the
Policy Orientation: Lasswell in Context, in HANDBOOK OF PUBLIC POLICY ANALYSIS:
THEORY, POLITICS, AND METHODS (Frank Fischer, Gerald Miller, Mara S. Sidney eds.,
CRC Press 2006).

320.
See HOWARD ZINN, PEOPLE'S HISTORY OF THE UNITED STATES 59-76 (1999).
321.
See generally Bernard Fensterwald Jr., The Anatomy of American "Isolationism"

and Expansionism. Part 1, 2 J. CONFLICT RES. 111, 111-39 (1958).
479
well as the value of American Exceptionalism. 322 These ideas would

find legitimacy in the mantle of emergent American national identity, as
well as the idea of an American sovereignty necessary to defend and
promote Americanism. 3 23 However, the political arrangements of
the new State were built upon skepticism of power and the fear of the
abuse of power in the new political order.3 24 Thus, the new political
order based upon an articulate division of powers between the different
branches of the government and between the States and the Federal
government provided a blueprint for the future. However, it was not a
blueprint that could cover every possible future contingency. Hence, the
practice of American democracy and the allocation of competence within
the body politic and its implications in the nation's foreign relations
remained matters of contestation in the political and legal arena. It was
in the legal arena that the Supreme Court could carve out a major role
for itself as the ultimate decision maker on certain matters that required
Constitutional interpretation.325 The Court asserted a competence within
the scope of its reviewing authority based on the importance of the
natural law tradition, which had been developing in Europe and England.326
The natural law tradition permitted the legal profession to appropriate the
important processes of reasoned elaboration in the context of vigorous
adversarial argument of legal proceedings to justify its limited but important
sphere of ultimate authority. 27 The 19th century jurisprudence of the
Supreme Court, is therefore, a representation of the importance of the
application of practical circumstances and ideas of right reason to the
solution of problems where a rational interpretation of the Constitution
is required.
In the latter part of the 19th century, the United States came under the
influence of the importance of science in the cultural understandings of
evolving US culture. 32 8 Science came in the form of positivism, and in
law, positivism expressed itself in terms of Austin's theory of sovereignty.
322. See generally Harold H. Koh, On American Exceptionalism, 55 STAN. L. REV.
1479, 1480-1527 (2003).
323. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION
160 (1967).
324. See Harry N. Scheiber, Federalism and Legal Process: Historical and
ContemporaryAnalysis of the American System, 14 LAW & Soc'Y REv. 690, 713, 663722 (1979-1980).
325. See generally Skelly J. Wright, Role of the Supreme Court in a Democratic
Society-JudicialActivism or Restraint, 54 CORNELL L. REv. 1, 1-28 (1968-1969).
326.
CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 131-90
(1922).
327. See NOBERTO BOBBIO, THOMAS HOBBES AND THE NATURAL LAW TRADITION
156-60 (Univ. of Chicago Press 1993).
328. See generally George H. Daniels, The Pure-Science Ideal and Democratic
Culture, 156 SCIENCE 1699 passim (1967).
480
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SAN DIEGO INT'L L.1
The science behind Austin's theory was that the ultimate source of
law-the principle that validated law-was to be found in an empirical
and finite sovereign.329 The sovereign was the source of all law. 33 This
idea did not provide an easy fit for a political system that had already
created space for natural law ideas as an intrinsic part of how law is
made and applied.3 3' Austin's model therefore would have to be modified
to more appropriately fit American circumstances. 332 Clearly, the Austinian
model had an influence on such late 19th century thinkers as Oliver
Wendell Holmes, Jr., John Chipman Gray, and James Bradley Thayer.333
1. James Bradley Thayer
Thayer was a distinguished Harvard Law professor. His most famous
article was The Origin and Scope of the American Doctrine of
Constitutional Law.334 This article was a powerful application of the
sovereignty ideas associated with legal positivism to the practice and
theory of American Constitutional law. The central point of Thayer's
approach was to vest as much sovereignty as possible in the competence
of the legislatures. 335 This is an idea that has an affinity with the idea of
Parliamentary sovereignty. 336 The nuanced version of this is that given
the existence of a rigid Constitution, sovereignty vest with legislatures
which are the primary determinants of the constitutionality of laws.3 37
Thayer carves out a space for the Courts. This space significantly limits
the discretionary invocation of natural law. 338 The reviewing power of
the Court is limited to the idea of a clear error test. 339 There is no de
330. Id.
331. Id.
332. Id.; see also Wilfrid E. Rumble, Legal Positivism of John Austin and the
Realist Movement in American Jurisprudence,CORNELL L. REV. 986 (1980-81).
333. Supra note 1; see generally WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE
ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (Oxford Univ. Press 1994).
334. JAMES BRADLEY THAYER, The Origin and Scope of the American Doctrine of
ConstitutionalLaw, in LEGAL ESSAYS 1 (1908).
335.
G. Edward White, Revisiting James Bradley Thayer, 88 NW. U. L. REV. 48
(1993-1994); see generally JAMES BRADLEY THAYER, LEGAL ESSAYS (The Boston Book
Co. 1908); see generally JAMES BRADLEY THAYER, THE ORIGIN AND SCOPE OF THE
AMERICAN DOCTRINE OF CONSTITUTIONAL LAW (Little, Brown 1893).
336. Id.; see generally Thomas C. Grey, Thayer's Doctrine: Notes on Its Origin,
Scope, and PresentImplications, 88 Nw. U. L. REV. 28 (1993).
337. Id.
338. Id.
339. Id.
481
novo reviewing power. Thus, Thayer brings into the discourse about
American sovereignty the importance of legislature sovereignty and the
secondary nature of legal sovereignty at least as expressed in the Courts.340
Thayer's theory has had an enormously influential track record in the
development of American ideas of sovereign authority. 34 1 The idea that
the judiciary has a place in the universe of sovereign authority represents
a place that can be developed within the larger legal culture only under
principles of self-restraint. In short, to the extent that judges use right
reason, that reason should be deployed to rationally underscore the limits
of judicial authority.
2. John Chipman Gray
John Chipman Gray's work examines more directly the state of legal
theory and the influence of legal positivism in the 19th century. 34 2 His
most important work was The Nature and Sources of Law. 34 3 Gray's
work essentially grappled critically with Austin's sovereignty idea,
which he felt was insufficiently empirical to guide proper inquiry into
the operational workings of the machinery of government.344 Gray
notes that the supreme governors of society, who control and regulate
the wills of their fellows, represent a complex empirical question, which
often defies easy definition and identification. 34 5 The State essentially
creates an architecture to which the machinery of government is attached.
To add Austin's sovereign as somehow pre-estate and pre-machinery of
government, simply adds an idea that is not amenable to empirical
specification, but in fact, undiscoverable and intangible.347 The idea is
difficult, "purely academic" and irrelevant. Gray also took the position
that law is normally declared by the composition of rules which originate in
judicial organs. 3 48 Those rules prescribe the determination of rights and
duties. 349 Gray also took the position that statutes were not law but only
340.
341.
Id.
Id.
342. See generally ROLAND GRAY, JOHN CHIPMAN GRAY (Priv. print, D.B. Updike
1917).
343. Id; see generally JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF LAW
(Roland Gray ed., 2nd ed. 1921).
344. Id.
345. Id; see generally Stephen A. Siegel, John Chipman Gray and the Moral Basis
of ClassicalLegal Thought, 86 IOWA L. REv. 1513 (2001).
346. Id.
347. See generally supranotes 139 & 335.
348. Id.; see also Stephen A. Siegel, John Chipman Gray and the Moral Basis of
Classical Legal Thought, 86 IOWA L. REv. 1513 (2000-2001); see generally JOHN
CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW (The Macmillan Co. 1921).
349. Id.
482
[VOL. 13: 429, 2012]

a source of law. 350 They became law by judicial construction from

which a determination of allocation of rights and duties resulted. 35 1 To
the extent that there is some sort of sovereign, it will be repose in the
Supreme Court, composed of nine old men, some of conceivably limited
intelligence. From Gray we see that the positivism of Austin is
rejected as unrealistically formalistic and a new kind of positivism emerges
drawn from the complex of experience of modem governance. 352 Austin's
original science has essentially been given a different empirical orientation.
Gray's orientation, effectually seeks to undermine the formalistic
implications of Austin's approach. It does not say that the clarification
of authority and control is irrelevant. In fact, it seeks to empirically
establish the nature and sources of law on the basis of empirical realism. 353
3. Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes was a Harvard Law professor and later, an
Associate Justice of the Supreme Court of United States. Holmes was a
significant and original legal thinker and his contributions to the practice
and the theory of law in United States are without peer. 354 Holmes was
also a figure influenced by the ubiquity of the influence of science on
political and legal culture in the U.S. in the late 19th century. He was
therefore, influenced by the general orientation of positivism and in
particular, the objective of positivism to state the law as it is, and not as
it ought to be. The particular gloss on Holmes' positivism is the imprint
of philosophical pragmatism on Holmes' development of legal thought
in the direction of a form of positivism. We can distill two forms of
positivism in Holmes' work. First, Holmes was committed to a more
empirical view of the sources and validity of law. As he stated "the life
of the law has not been logic; it has been experience". 355 Additionally,
his great skepticism of the alleged virtues of logic, as reflected in
Austinian positivism, was rejected when Holmes suggested that as a
350.
351.
352.
353.
Id.
Id.
Id.
Id.
354.
See generally G. EDWARD WHITE, OLIVER WENDELL HOLMES, JR. (Oxford
Univ. Press 2006).

355.
Id.; see generally OLIVER. WENDELL. HOLMES, JR., THE COMMON LAW (1881).
483
Judge, he could give any conclusion, a logical form.356 Thus, we see a

concern that interpretation reflected certain skepticism of doctrine, and
therefore there would be skepticism of the source of legal doctrine, the
sovereign. Holmes on the other hand was also concerned that the
implications of his skepticism might undermine the idea central to scientific
approach-that law must be objective and objectively determinable.357
This latter idea is essentially Austinian. In a sense, Holmes promoted
both of these ideas and never sought to secure a theoretical reconciliation
between the life of the law as experience and the objectivity of law as
determined by factors more akin to logical extrapolation. 358 In practice,
Holmes was impeccably opposed to the natural inclinations of judges
who using natural law ideas were in effect putting into judicial form
their subjective ideological or idiosyncratic preferences.3 59 In the case of
Lochner v. New York, Holmes pointed out that "a Constitution is not
intended to embody a particular economic theory," which relied on natural
law.360 Years later, in the dissenting opinion of S. Pac. Co. v. Jensen,
Holmes added that "[t]he common law is not a brooding omnipresence
in the sky and . . . judges are not independent mouthpieces of the
infinite." 36 1 In cases like Lochner, Holmes followed Thayer by insisting
that the legislative supremacy of the States be respected. In this sense,
Holmes in practice endorsed a version of State legislature sovereignty. 36 2
Holmes' great influence on American legal practice ultimately prevailed
in the famous case of Erie v. Tomkins.36 3 Holmes had been a critic of the
idea that federal judges could create the common law out of natural law
thinking. In Erie the Court finally agreed and established the importance
of law as emanating from a sovereign State and not from the imaginative
insights of natural law thinking in judges.364 The pathway plotted by
Holmes, Gray, and Thayer provided a rich foundation from which ideas
of sovereignty and constitutionalism could evolve in American theory
and practice.
356. Id.; see Oliver Wendell Holmes, The Path of the Law, 110 HARV. L. REV. 991,
991-1009 (1997).
357. Id.
358. Id.
359. Id.; see also O.W. Holmes, NaturalLaw, 32 HARV. L. REv. 40 (1918-1919).
360. Lochner v. New York, 198 U.S. 45, 75 (1905).
361. Id.; see S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J.,
dissenting).; see generally FRANCIS BIDDLE, JUSTICE HOLMES, NATURAL LAW, AND THE
SUPREME COURT 49 (1960).
362. Gerald Leonard, Holmes on the Lochner Court, 85 B.U. L. REV. 1001, 1013
(2005).
363.
364.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

Id.
484
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B. Hart and Sacks: The Legal Process Approach

The approach of H.L.A. Hart may be contrasted with the approach of
the idea of sovereignty in the work of two Harvard Professors: Hart and
Sacks, who developed a legal process approach to legal theory. 365 That
approach provides insights into the nature of sovereignty itself. Central
to their approach is the sense that traditional positivism, asking the
question of what is law, essentially misdirected the focus of relevant
inquiry and description. 366 In their view, a better focus is developed if
we change the question to what is a legal question. 367 In effect, one
could not answer this question without taking into account the idea that a
legal question must be differentiated from a legislative, an administrative,
and an executive question. 368 This therefore refers to institutions of
governance and therefore the unpacking of sovereignty was tied to the
processes by which human beings settled problems in society. On the
idea of law as institutional settlement, and according to Hart:
It is a by no means indefensible view of law to think of it as consisting most
importantly of an operating system of general propositions, established by
authority of the society, answering the questions of the who and how with
respect to all methods of concern to the members of society, and so making
possible their peaceable settlement. . . [L]aw comprises (although it may not be
confined to) a series of institutionalized processes for settling by authority of the
group various types of questions of concern to the group. 369
From this perspective, they develop a principle of institutional settlement,

which is a foundation of governance in the modern state.3 70 Some
365. See generally HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS:
BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (1994). This study is not
directly focused on the elucidation of sovereignty as such. However, these authors have
clarified the conception of sovereignty from a functional point of view by underscoring a
deeper understanding of the appropriate sphere of institutional competences in the
modem state. This suggests that for different purposes different institutions may be
charged with making final or ultimate decisions in the body politic.
366. Id.; see also Vincent A. Wellman, Dworkin and the Legal Process Tradition:
The Legacy offHart & Sacks, 29 ARIz. L. REv. 413 (1987).
367. Id.
368. Id.
369. See Henry M. Hart, Note on some Essentials ofa Working Theory ofLaw (Hart
Papers, Box 1, Folder 1, 1950); see also HENRY M. HART, NOTES AND OTHER MATERIALS
FOR THE STUDY OF LEGISLATION (1950). Legal theory, however, still generates important
insights into the nature of sovereignty; see also Winston P. Nagan, Lasswell and
McDougal andContemporary Theories ofJustice, presentation at Yale, Sept. 14, 2010.
370. Richard H. Pildes, Forms of Formalism, 66 U. CHI. L. REv. 607 (1999); see
also Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm,47 VAND.
485
problems are quintessentially juridical.37 ' Thus, the institution specialized

to generating distinctively legal decisions will be the ultimate institutional
authority for the expression of final legal decisions.372 In this sense,
some ultimate decision-making competence is vested with distinctively
legal institutions. The institution was competence specialized to legislation
will be the ultimate authority of legislative expression. The same could
be indicated for administrative and executive competence. In this sense,
sovereignty, seen in the complex of institutional competences of specialized
institutions of governance, is not undifferentiated but an aspect of sovereign
power, which is vested in different institutional mechanisms whose
competences may be objectively delineated as legislative, judicial,
administrative, or vested with executive authority.373 This approach to
the idea of sovereignty is more complex and requires a searching
determination of the precise locus of ultimate authority in terms of the
specialized institutional context. 3 7 4
C. Carl Schmitt: Sovereignty Rooted in the PoliticalException
Although Schmitt was German, his ideas about sovereignty, and the
political exception have had influence on the American theory and
practice of sovereignty. Carl Schmitt was a philosophic theorist of
sovereignty during the Third Reich.37 His ideas about sovereignty and
its above the law placement in the political culture of the State have
important parallels in the developing discourse in the United States about
the scope of presidential authority and power. His views have attracted
the attention of American theorists. Schmitt developed his view of
sovereignty on the concept described as "the exception".376 This idea
suggests that the sovereign or executive may invoke the idea of exceptional
powers which are distinct from the general theory of the State. In
Schmitt's view, the normal condition of the functions of the theory of a
State, rides with the existence of the idea of the "exception." The
exception is in effect intrinsic to the idea of a normal State. In his view,
L. REV. 953 (1994); see also William N. Eskridge, Jr. & Philip P. Frickey, The Making
of the Legal Process, 107 HARV. L. REV. 2031 (1993-1994).
371.
372.
373.
374.
375.
(1987).
Id.
Id.
Id.
Id.
MICHAEL ARGYLE, THE PSYCHOLOGY OF HAPPINESS
274 (Routledge 2d ed. 2001)
376. GEORGE SCHWAB, THE CHALLENGE OF THE EXCEPTION: AN INTRODUCTION TO

THE POLITICAL IDEAS OF CARL SCHMITT BETWEEN 1921 AND 1936 (Duncker & Humblot
1970).
486
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SAN DIEGO INT'L LJ.
the normal legal order of a State depends on the existence of an exception.37 7

The exception is based on the continuing existence of an existential threat to
the State and it is the sovereign that must decide on the exception.37 8 In
short, the political life of a State comprises allies and enemies. For the
purpose of Statecraft, "an enemy exists only when at least potentially,
one fighting collectively of people confronts another similar collectivity."3 79
In this sense, the political reality of the State always confronts the issue
of the survival of the group. This reality is explained as follows:
The political is the most intense and extreme antagonism, and every concrete
antagonism becomes that much more political the closer it approaches the most
extreme point, that of the friend-enemy grouping. *** [A]s an ever present
possibility [war] is the leading presupposition which determines in a
characteristic way human action and thinking and hereby creates a specifically
political behavior.*** A world in which the possibility of war is utterly
eliminated, a completely pacified globe, would be a world without
the
380
distinction between friend and enemy and hence a world without politics.
Schmitt's view bases the supremacy of the exception on the supremacy of

politics and power.381 Thus, the exception, as rooted in the competence
of the executive, is not dependent on law for its authority but on the
conditions of power and conflict, which are implicitly pre-legal.38 2 The
central idea is that in an emergency, the power to decide based on the
exception accepts its normal superiority over law on the basis that the
suspension of the law is justified by the pre-legal right to selfpreservation. 383 Schmitt's view is a powerful justification for the
exercise of extraordinary powers, which he regards as ordinary, by
executive authority. This is a tempting view for executive officers but it
may not be an adequate explanation of the interplay of power, legitimacy,
and the constitutional foundations of a rule of law State. In a later
section, we draw on insights from the New Haven School, which deals
empirically with the problem of power and the problem of constituting
authority using the methods of contextual mapping. Nonetheless, Schmitt's
377.
378.
Id.
Id
379.
Id; see CARL SCHMITT, THE CONCEPT OF THE POLITICAL 10 (George Schwab
trans., Univ. of Chicago Press 2007).

380. Id. at 29, 34-35.
381.
Id.; see generally THE CHALLENGE OF CARL SCHMITT (Chantal Mouffe ed.,
Verso 1999).
382. Id.
383. Id.
487
view provides support for theorists who seek to enlarge executive power
on the unitary presidency theory. 3 84
D. Hannah Arendt: Sovereignty Rooted in People'sExpectations
Another important contribution to the clarification of the sovereignty
concept is found in the scholarship of Hannah Arendt. Arendt looks at
politics differently from Schmitt. The give and take of politics is generated
by the interaction and internal bondings of members of the community.
Hence, politics is not myopically a matter of outside threats to survival.
She expresses these ideas as follows:
The man of the American Revolution, on the contrary, understood by the very
opposite of a pre-political natural violence. To them, power came into being
when and where people would get together and bind themselves through
promises, covenants, and mutual pledges; only such power which rested on
reciprocity and mutuality, was real power and legitimate.***385
In Arendt's view, law is in part constitutive of politics because it

"produces the arena where politics occurs."386 Additionally it "defines
the space in which men live with one another without using force". 3 87 In
her view law is not post-political, it is pre-political. This is a social
scientist's way of justifying the supremacy of law and the limitations of
claims to sovereign absolutism implicit in Schmitt. Again, Arendt is
dealing with the interplay of politics and law but suggests the notion that
social forces and power relations somehow pre-politically create law and
thus the space for politics. This too is an approach that is not
unproblematic. The relationships between the social processes, which
generate outcomes of effective power, also generate the processes by which
effective power is moderated by understandings of mutual cooperation
and self-interests among power brokers. It is here that understandings
about managing power and expectations generate the framework of legal
orders for political space. We refer again to this issue when we outline
the social and power process background to law and map those processes
onto the idea of a constitutive process. Additionally, the dynamics of
power and power generated understandings operate across State lines as
well.
384.
385.
386.
2009).
387.
Id.
HANNAH ARENDT, ON REVOLUTION 173 (Penguin Books 2006) (1963).
HANNAH ARENDT, THE PROMISE OF POLITICS 181 (Random House Digital, Inc.
Id.
488
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E. Justice Samuel A. Alito Jr.: The Unitary Executive

Justice Alito is generally regarded as the initiator of the so-called
"unitary executive theory." " It is a theory developed in the context of
constitutional interpretation, but appears to have a strong affinity with
the philosophical reflections of the German political theorist Carl
Schmitt. 389 It is not clear whether Alito was aware of Schmitt's work
and was influenced by him or whether he had come to a position
concerning the powers of the President that have strong parallels with
the philosophical justification given by Schmitt about the idea of
unfettered powers vesting in the executive. In any event, we reproduced
Schmitt's fundamental ideas above because they provide a broader
philosophical justification for Alito's theory of the unitary executive
based on a textual analysis of the Constitution. 390 Alito was a lawyer in
the Office of Legal Counsel. His tenure with the Reagan Justice
Department came in the aftermath of the still lingering political effects
of the removal of Republican President Richard Nixon from office.
Nixon's demise in the context of the Watergate Scandal resulted in
stronger assertions of legislative supremacy to constrain the abuse of
power by the executive."' President Ford sought to find ways to reestablish
presidential power without unduly drawing the attention of Congress to
it.392 When Reagan came into office, there remained an urge with
this new Republican Administration that presidential powers, which had
been reduced in the fall of Nixon, should be recaptured by the executive
branch.393 Alito was well placed to consider what legal strategies might
be used to advance the cause of presidential power within the framework
of executive authority.
The central problem Alito saw as a lawyer representing the executive
interests was the expansion of congressional power and a corresponding
388. JUDGE SAMUEL ALITO, Administrative Law and Regulation:PresidentialOversight
and the Administrative State, in 2 ENGAGE: THE JOURNAL OF THE FEDERALIST SOCIETY'S
PRACTICE GROUPS 12 (2001).
389.
Jeffrey Steinberg, Judge Samuel Alito and The 'Fiihrerprinzip',EXECUTIVE
INTELLIGENCE REV. 5 (2006).
390. See generally, Peter M. Shane, Legislative Delegation, The Unitary Executive,
and the Legitimacy ofthe Administrative State 33 HARV. J.L. & PUB. POL'Y 103 (2010).
391. Barton J. Bernstein, The Road to Wategate and Beyond: The Growth and
Abuse ofExecutive Authority since 1940,40 LAW&CONTEMP. PROBS. 58,74 (1976).
392. Arthur M. Schlesinger Jr., The Constitution and Presidential Leadership, 47

MD. L. REv. 54, 65 (1987-88).
393. Id
489
limitation of presidential power.3 94 His approach was therefore to develop

an interpretative logic that sought to narrowly characterize the scope of
congressional power. Additionally, in order to expand the power of the
executive, he provided a bold, unjudicially -tested theory of the
executive, which had implicated that its boundaries were expansive and
unlimited. In Alito's view, the unitary executive theory "best captures
the meaning of the Constitution's text and structure."3 95 Central to his
analysis is the ideal that the text of the Constitution vests "all executive
power" in "the President." 396 Alito additionally stressed that the national
interest required "a vigorous executive."3 97 Prime reliance is placed on
Article 2 of the Constitution, which stipulates "the executive power shall
be vested in the President of the United States of America."398 There is
no guidance as to the scope of this power. The Constitution also stipulates
that "the President shall be commander in chief of the Army and the
Navy .. .,.399 However, the Constitution also, and separately assigns the
power to declare war, raise Armies, and regulate the taking of prisoners
to Congress. 40 0 Essentially the Constitution is much more explicit about
specifying the powers of Congress. Implicit in this fact is the idea that
what is not specifically enumerated is presumptively outside of the
competence of Congress. On the other hand, the vesting of competence
in the executive is over all matters of an executive character (however
this is defined). Since the specific allocation of competence to the
President is not enumerated in detail, it is an appropriate Constitutional
interpretation to give as expansive an interpretation of executive power
as can plausibly be claimed. Professor Steven Calabresi has been a strong
supporter of Judge Alito's theory. According to Calabresi, "[u]nitary
executive theorists read th[e Constitution] . . . as creating a hierarchical,
unified executive department under the direct control of the President....
The practical consequence of this theory is dramatic: it renders
unconstitutional independent agencies and counsels to the extent that
they exercise discretionary executive power."40 1 The importance of the
Alito view lies in the fact that he was widely supported by a legal interest
394. Charles F. Schumer, Under Attack: CongressionalPower in the Twenty-First
Century, 1 HARV. L. & POL'Y REv. 3, 3-4, 36 (2007).
395. See Steinberg, supra note 389, at 4.
396. PEOPLE FOR THE AMERICAN WAY, THE RECORD AND LEGAL PHILOSOPHY OF
SAMUEL ALITO: "No ONE TO THE RIGHT OF SAMUEL ALITO ON THIS COURT" 21, SPECIAL
REPORT (2006).
397. Id.
398. U.S. CONST. art. 11, 1.
399. U.S. CoNsT. art. II, 2.
400. U.S. CONST. art. I, 8.
401. Steven A. Calabresi & Kevin H. Rhodes, The StructuralConstitution: Unitary
Executive, PluralJudiciary,105 HARV. L. REV. 1153, 1165-66 (1992).
490
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SAN DIEGO INT'L LJ.
group identified with conservative causes: The Federalist Society. One

of the techniques used to secure the allocation of greater competence to
the executive at the expense of the Congress was the Alito's suggestion
of the use of presidential signing statements. 402
After the momentous events of 9/11, the issue of the scope of the
President's powers under emergency conditions became an acute issue. 403
In addition to these conditions, Vice President Cheney brought to the
office of the executive a long memory of the loss of presidential powers
in the aftermath of Watergate.404 The events of 9/11 provided an ideal
In the conduct
justification for the executive to reclaim these powers.
of the war against terrorism, the administration's lawyers placed reliance on
the unitary presidency theory for broad assertions of unaccountable
power.4 06 The President's lawyers maintained that the unitary nature of
the power of the executive could not be limited by treaty obligations or
congressional legislation, which purported to govern the treatment of
enemy prisoners. 407 On September 25, 2001, John Yoo wrote that "the
centralization of authority in the President alone is particularly crucial in
matters of national defense, war, and foreign policy, where a unitary
executive can evaluate threats, consider policy choices, and can mobilize
national resources with a speed and energy that is far superior to any
other branch."408 An even stronger claim emerged from Assistant Attomey
General Jay Bybee in August 2002.409 Bybee's advice to the President was
that "even if an interrogation method were to arguably violate (an anti-
402. Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements as

Interpretationsof Legislative Intent: An Executive Aggrandizement of Power, 24 HARV.
J. ON LEGIS. 363, 366 (1987).
403. Id; see generallyJOHN Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTION
AND FOREIGN AFFAIRS AFTER 9/11 (Univ. of Chicago Press 2006).
404. Id.; see also Bruce P. Montgomery, CongressionalOversight: Vice President

Richard B. Cheney's Executive Branch Triumph, 20 POL. ScI. Q. 581, 581-617
(2005/2006); see also Mark J. Rozell, Executive PrivilegeRevived: Secrecy and Conflict
Duringthe Bush Presidency, 52 DUKE L.J. 403 (2002-2003).
405. Id.
406. Id; see also David Schultz, Democracy on Trial: Terrorism, Crime, and National
Security Policy in a Post 9-11 World, 38 GOLDEN GATE U. L. REV. 195 (2008).
407. Id.
408. Robert J. Delahunty, John C. Yoo, The President'sconstitutionalauthority to
conduct military operations against terrorist organizations and the nations that harbor
or support them, 25 HARV. J.L. & PUB. POL'Y 487,492 (2002).
409. The Bybee Torture Memo, Memorandum for Alberto R. Gonzales Counsel to
the President, Re. Standards of Conduct for Interrogation under 18 U.S.C. 23402340A (2002).
491
torture law), the statute would be unconstitutional if it impermissibly

encroached on the President's power to conduct a military campaign."O
So reliant was the Bush policies in conducting the war on terror on the
unitary presidency theory that according to Calabresi, "if the theory were
wrong there would be no way the Bush administration's anti-terrorism
policies could be constitutionally justified."1'" The technique that Judge
Alito effectively advocated to the executive was the President's use of
signing statements to exempt himself from otherwise lawfully
enacted congressional legislation.4 12 The Bush administration claimed
the inherent power to authorize the torture of military detainees in
violation of U.S. law and Treaty obligations. The President's use of the
technique of signing statements attached to bills that were become U.S.
law involved the President issuing over a hundred signing statements,
which in effect exempted him from those laws when he felt that they
interfered with these unitary executive powers. The unitary theory relied
on a claim of powers inherent in the idea of executive authority. It
should be noted however that the concept of "inherent" is itself littered
with flexibility and therefore represents an unpredictable and undefined
ambit for a unified authority claim by the President. The President
relied on his inherent powers as Commander in Chief to authorize
warrantless domestic spying in violation of the Foreign Intelligence
Services Act. 4 13 He also claimed inherent authority to have subordinates
torture military detainees in violation of U.S. law and treaty obligations.
Although Alito's supporters, like Yoo, did provide functional
justifications for the assertion of executive powers in the context of
national security emergencies, even these justifications should be
understood in terms of little noticed historical fact about the Constitution.414
The American Revolution was fought and justified on the basis of the
concentrated, arbitrary powers of the Monarch.4 15 A major purpose in
the drafting of the Constitution was to avoid the concentration of power
and to provide for a text that would provide guidance concerning the
balance of power.416 Moreover, the founders were deeply concerned to
410. Id. at 31.
411. Jess Bravin, Judge Alito's View of the Presidency: Expansive Powers; A
Debate Over Terror Tactics: Court Pick Endorsed Theory of Far-ReachingAuthority;
Tenet ofBush White House, WALL ST. J., Jan. 5, 2006, at Al.
412. Marc N. Garber & Kurt A. Wimmer, supra note 402, at 366.
413. See generally Federal Intelligence Surveillance Act 36, 50 U.S.C.A. 1801,
Pub.L. 95-511, 92 Stat. 1783, (enacted 50 U.S.C. ch.36, S. 1566 (2006)).
414. See generally supranotes 409-13; infra notes 415-19.
415.
See generally BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN
REVOLUTION (Harvard Univ. Press 1992).

416. See generally JAMES M. BECK, THE CONSTITUTION OF THE UNITED STATES,
(Kessinger Pub. 2004).
492
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not create an American Monarchy, an executive that would fit the role of
a monarch-like sovereign.417 This major purpose, which guided the drafting
of the Constitution, appears to be a value that remains unconsidered by the
proponents of the executive theory.418
Jeffrey Steinberg, writing in Executive IntelligenceReview, has argued
that the unitary executive idea, which carries strong support from ultra
right wing constituencies, represents in contemporary terms, the idea of
the Ftihrerprinzip version of a sovereignty dominated executive identified
with Cal Schmitt. 419 Schmitt placed ultimate sovereignty in the Fuhrer
as a position above the law.42 Steinberg notes that Schmitt's view has
been used to legitimate the emergence of totalitarian regimes in for example
Franco's Spain and Pinochet's Chile and he sees the Schmitt's footprint
on the Alito/Bush/Chaney reconstruction of an above the law office of
the President. 42 1 He refers specifically to the McCain amendment, which
banned the torture of American held prisoners in the war on terrorism. 422
The President signing order simply permitted him to ignore the bill's ban
on torture. 423 This was a bill passed by a bipartisan, veto proof majority.424
The dangers of the unitary executive idea, as with the dangers of Carl
Schmitt's Filhrerprinzip, are well expressed by Steinberg as follows:
These are the issues before the U.S. Senate in the case of Judge Alito. The
doctrine of the "unitary executive" promoted by Alito is a carbon copy of the
doctrine of law devised by Carl Schmitt to justify the Hitler dictatorship of
February 1933 and the Pinochet dictatorship of Sept. 11, 1973. In both the
Hitler and Pinochet cases, Schmitt was "on the scene." As the leading German
jurist of the 1920s and '30s, Schmitt wrote the legal opinion justifying Hitler's
Reichstag fire coup. Schmitt argued that the "charismatic leader" derives
unbridled power from "the people" in time of crisis, and that any form of
government, based on a system of checks and balances, consensus, and
separation of power, is illegitimate, because it stands in the way of the absolute
ruler's responsibility to "protect the people.
417. Id
418. Id.
419. See generally Federal Intelligence Surveillance Act 36, 50 U.S.C.A. 1801,
Pub.L. 95-511, 92 Stat. 1783, (enacted 50 U.S.C. ch.36, S. 1566 (2006)).
420. Id.
421. Id.; see also Jeffrey Steinberg, Cheney and His Patsy, Bush, Face
Impeachment Furor, EIRNATIONAL (Dec. 30, 2005).
422.
423.
424.
IND. L.J.
Id.
Id; supra note 419.
Id; see also Koh, Harold Hongju, Can the President be Torturer in Chief 81
1145 (2006).
493
In the case of the Pinochet coup in Chile, Schmitt's student-protdg6 Jaime

Guzman, argued that the government had to use violence to impose order.
Guzman was the sole source of legal justificaion for the Pinochet coup and
dictatorship, and he insisted that violence was a precondition for success. In
effect, Schmitt acolyte Guzman ran fascist Chile-in the name of the same
doctrine of "unitary executive" power that Schmitt had earlier codified in the
Filhrerprinzip. It is the same doctrine that Cheney et al. seek to impose today on
the U.S.A.
This is fascism-pure and simple, and it must be crushed, now, if the United
States is to survive as a constitutional republic. 425
Justice Alito's idea of the unitary presidency has an uncanny affinity,

as with the sovereignty theory of law espoused by John Austin in the
early 19th century. Here Alito appears to salvage the notion of the President
as the ultimate sovereign and the near ultimate lawgiver. In this sense, it
could be urge that the theory of sovereignty, its precise scope and relevance,
while controverted, is very much a part of a vital national debate about
the fundamentals of authority and control, which touch on political culture,
legal culture, and the basic social values of United States.
F. John Yoo: The Unitary Presidency
John Yoo was an Assistant Attorney General in the office of Legal
Counsel.426 In short, he was a lawyer for the executive branch. Yoo
gained prominence for a number of memoranda he offered, which sought to
expand the powers of the executive so as to make them superior to those
of the legislature or the judiciary.4 27 At the heart of these memoranda
was the theory of the executive, which came to be known as the theory
of the "unitary executive.'A2 8 This theory carried the implication that
when exercising certain emergency powers, the executive was exercising
ultimate, non-accountable sovereign powers. 429 There appeared to be an
affinity to the Carl Schmitt view of the exception being a normal part of
the theory of the State.4 30 Yoo consolidated these views in a recent book,
which provides a vigorous defense of the unitary presidency idea.
In
Yoo's view, Hamilton and the other Federalists understood the executive
425. Supra note 389, at 5-6.

426. See Jim Wilson, JOHN Yoo, N.Y. TIMES, May 4, 2011.
427. Id.
428. See John C. Yoo, Unitary, Executive, or Both?, 77 U. CHI. L. REv. 1935 (2009),
available at http://works.bepress.com/johnyoo50.
429. Id.
430.
Id.; see generally SIBYLLE SCHEIPERS, PRISONERS IN WAR (Oxford Univ. Press
2010); see also Kim Lane Scheppele, Small Emergencies, 40 GA. L. REv. 835 (20052006).
431.
See generallyJohn Yoo, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWER
FROM GEORGE WASHINGTON To GEORGE W. BUSH vii-xiii (2010).
494
[VoL. 13: 429, 2012]

to be functionally best matched in speech, unity, and decisiveness to the

unpredictable high-stakes nature of foreign affairs, and rational action on
behalf of the nation in a dangerous world would be best advanced by
executive action. The gist of Yoo's theory for a robust appreciation of
executive power is expressed in the following quotation from his book:
As Edward Corwin observed, the executive's advantages in foreign affairs
include "the unity of office, its capacity for secrecy and dispatch, and its
superior sources of information, to which should be added the fact that it is
always on hand and ready for action, whereas the houses of Congress are in
adjournment much of the time. 432
This power does not ebb and flow with the political tides, but finds its
origins in the very creation of the executive. The Framers rejected the
legislative supremacy of the revolutionary state governments in favor of
a Presidency that would be independent of Congress, elected by the
people, and possessed with speed, decision, and vigor to guide the nation
through war and emergency. They did not carefully define and limit the
executive power, as they did the legislative, because they understood
that they could not see the future.433
The Yoo view rests on a historical, and in some ways functional,
reconstruction of the separation of powers and the distinctiveness of
powers reserved to the President.434 It also stresses the role of expanded
powers in the context of emergencies and war and underlines the fact
that the lack of specification of presidential powers in the Constitution
should not be read as a limitation, but a potential, exponential expansion
of those powers.435 For example, if the President invokes his power as
commander in chief, what limits are there on the exercise of these powers
that may be exercised by the legislature or the courts. The President
must determine what is required by military necessity, and to what
extent is his determination subject to review by the coordinate branches
of government.436 Some writers suggest that the Constitution represents
432.
433.
See id at 20.
See generally JOHN YOO, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE
POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH 1-52 (2009).
434. Id.
435. Id.
436. Id.; see generally CHARLES AUSTIN BEARD, AN ECONOMIC INTERPRETATION OF
THE CONSTITUTION OF THE UNITED STATES (Transaction Publishers 1913); see generally
WooDROw WILSON, CONSTITUTIONAL GOVERNMENT INTHE UNITED STATES (Transaction
Publishers 1908).
495
a more complex multi-branch framework of cooperation, collaboration,

and guidance.4 37
G. Bruce Ackerman: Legislative Emergency Sovereignty
Professor Bruce Ackerman expresses concern about the authority
foundations of the executive to conduct activities that are essentially
extra-constitutional.4 38 The question put here is how a scholar committed to
the basic values of the Constitution can approach the problem of the
possible excesses of the extra-constitutional decision-making. In short,
the events related to the terrorist attacks have served to weaken the
fundamental Constitutional values that Americans cherish. The central
issue that Ackerman addresses is the claim of executive emergency
sovereignty, which in general emerges as a temporary suspension of the
Constitution, but the fear is that the temporary becomes a relatively
permanent fixture of government unless we can develop a constitutional
strategy to better secure constitutional values and to restrain the claims
of emergency unaccountable sovereignty. 4 39 Ackerman suggests the
following as a fix to the problem of runaway sovereignty:
The first and most fundamental dimension focuses on an innovative system of
political checks and balances, ***[including] constitutional mechanisms that
enable effective short-run responses without allowing states of emergency to
become permanent fixtures.*** Given the formidable obstacle course presented
by Article V of the U.S. Constitution, my proposal is a nonstarter as a formal
amendment. Nevertheless, much of the design could be introduced as a
"framework statute" within the terms of the existing Constitution. Congress
took a first step in this direction in the 1970s when it passed the National
Emergencies Act. But the experience under this Act demonstrates the need
for radical revision. 440
Professor Ackerman's concern is that once the State travels the road of
emergency jurisdiction as a justification for the preclusion of fundamental
constitutional values, it is difficult to limit such constraints on the
Constitution. 4 4 1 The late Professor Anthony Mathews, an expert on the
national security law experience in South Africa, wrote an article titled
437. Deborah N. Pearlstein, The Form and Function in the National Security
Constitution,41 CoNN. L. REV. 1549, 1553-54 (2009).
438. See Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029,
1031-32(2004).
439. Id; see generally BRUCE A. ACKERMAN, THE CASE AGAINST LAMEDUCK
IMPEACHMENT (Seven Stories Press 1999); see also Bruce Ackerman & Neal Katyal, Our
UnconventionalFounding,62 U. CHIC. L. REV. 475-573 (1995).
441. Id.; see generally supranotes 438-39.
496
[VOL. 13: 429, 2012]

The Permanence of the Temporary, in which he identifies this problem.442

The problem with the enactment of such legislation is really the concern
of the legislators about the politics of patriotism. When an appeal is
made for exceptional powers in a security context, it is usually justified
by strident appeals to patriotism with the implicit assumption that
opposition or restraints on such claims to competence reflect an inadequate
or lukewarm form of patriotic loyalty. 443 For example, the far-reaching
Patriot Act had not been read by most members of Congress, yet the fear of
voting against the Act was a fear of voting against popularly understood
patriotism. 444 We therefore do not believe that the Ackerman position
has political traction in the real world of legislative politics. It is a
position that can work only if a multitude of constituencies and interest
groups with compelling media access can constrain the appeals to crass
patriotism and formulate a structure of public opinion that reflects mature
judgment that moderates destructive emotionalism. That is a tall order.
H. Laurence Tribe and PatrickGudridge: The Supremacy ofLaw
Professors Tribe and Gudridge provide a considered response to the
Ackerman view that the last resort for the protection of fundamental
values in a state of emergency must rest within the Congress.445 In their
view, they believe that the substantial reliance on the legislative process
rather than on the explicit expectations coded in the Constitution
concedes too much to the legislative branch and too little to the culture
of constitutional prescription, application, and enforcement. 446 In essence,
Ackerman's theory of an emergency constitution whose protections
are vested within the legislative branch suggests a concession that the
Constitution itself has no political and legal efficacy. It essentially
involves giving up on the Constitution and its practices as conventionally
understood. This is a grand bargain that Tribe and Gudridge believe
should be rejected because it represents the prospect that threatens us
442. See A.S. Mathews & R. C. Albino, The Permanence of the Temporary. An
Examinationof the 90 and 180 Day Detention Laws, 83 S. AFR. L.J. 16 (1966).
443. Id.
444. Id; see generally Michael T. McCarthy, USA PatriotAct, 39 HARV. J. ON LEGIS.
435 (2002).
445. See Laurence H. Tribe & Patrick 0. Gudridge, Anti-Emergency Constitution, 113
YALE L.J. 1801 (2003-2004); see also Bruce Ackerman, This Is Not a War, 113 YALE
L.J. 1871 (2003-2004).
446. Id.
497
with less vigilance about the government's encroachment on the

Constitution in the interest of patriotism.447 They suggest, "the lessons of
history teach us [that] we had best be most on our guard" if Ackerman's
grand bargain is acted upon.4 8 In the Tribe view, there is skepticism of
legislative sovereignty and its capacity to respect the Constitution in the
context of a national security crisis. The Tribe view believes that there
should be no compromising on the strength and institutions of legal
culture to constrain the abuse of sovereign power under the Constitution.
The implications of this view may suggest that in the context of national
emergencies, sovereignty under the Constitution is inappropriate if it
sidelines the legal profession and the judicial branch of government. 450
In this sense, it is implicit that sovereignty is a shared complex competence
in peace or war between the executive, the legislative, and the judicial
branches of government.4 51
VII. CONTEMPORARY PROBLEMS IN THEORY AND PRACTICE
The meaning of sovereignty in the 16th century is obviously different

from its meaning in the 20th century. Although there is such an institution
as the Queen in Parliament, the central idea of sovereignty is reflected in
the idea of Parliamentary Sovereignty.4 52 The authority foundation of
sovereignty has shifted to the sovereignty of the people expressed in
their elected representatives. 453 The diverse and often partial meanings
attributed to the term sovereignty mean that its invocation is unclear and
fraught with ambiguity. 454 Indeed, from the practice of decision-makers
and the writings of eminent scholars, there are certain identifiable core
references, which the term sovereignty evokes. 4 5 5 For example, the term
includes a reference to the notion of a body politic, which is a complex
idea of which the nation-State is simply one example; it includes a
447. Id
448. Id
449. Id; see also Laurence H. Tribe, Taking Text and Structure Seriously: Reflections
on Free-FormMethod in ConstitutionalInterpretation, 108 Harv. L. Rev. 1221, 12211303 (1995); see generally LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES (Harvard
Univ. Press 1985); see generally LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT:
How THE CHOICE OF SUPREME COURT JUSTICES SHAPES OUR HISTORY (New York, Random
House 1985); see also Laurence H. Tribe, The Puzzling Persistence of Process-Based
ConstitutionalTheories, 89 Yale L.J. 1063-80 (1980).
450. Id
451. Id.
452. Id.
453. Id.
454. Thomas M. Franck, Legitimacy in the InternationalSystem, 82 AM. J. INT'L L.
705, 705-06 (1988) (stressing the importance of international obligation and legitimacy
as conditioning sovereign authority).
455. See generally supra notes 1 & 27.
498
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SAN DIEGO INT'L LJ.
reference to control or efficacy in political and legal processes; and it

includes an ambiguous reference to the idea of governance with either an
implicit legitimacy or an authority component.456 These core designations
have been implicit in the many partial and incomplete references the term
has come to symbolize, such as Sovereignty as a personalized monarch
(real or ritualized); as a symbol for absolute, unlimited control or power;
as a symbol of political legitimacy; as a symbol of political authority; as
a symbol of self-determined, national independence; as a symbol of
governance and constitutional order; as a criterion of jurisprudential
validation of all law (grundnorm, rule of recognition, sovereign); as a
symbol of the juridical personality of Sovereign Equality; as a symbol of
"recognition;" as a formal unit of a legal system; as a symbol of powers,
immunities, or privileges; as a symbol of jurisdictional competence to
make and/or apply law; and as a symbol of basic governance competencies
(constitutive process).4 57 The multitude of meanings attributable to the
sovereignty idea reflects its usability in many diverse contexts of social
organization. One of the most important of these contexts is the global
environment. The sovereignty issue was critical to understanding the
conduct and abuses of the parties to the Second World War and its
aftermath.458 This background problem and the variability in the meaning
of sovereignty serve as an important background for developments
relating to sovereignty in the twentieth century.459
A. EmpiricalPerspectivesand Theories ofDecolonization
There is an alternative approach to clarifying the theory of the
sovereignty idea. 460 This approach is more empirical and draws on the
jurisprudence of the New Haven School of international law. 46 1 This
456. Id.
457. Winston P. Nagan, Strengthening HumanitarianLaw: Sovereignty, International
Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia, 6 DUKE J. COMP. &
INT'L L. 127, 144-45 (1995). The contemporary challenges relating to State sovereignty
include the idea of non intervention in the domestic jurisdiction of the state.
Humanitarian law is essentially a law that stresses the idea of international concerns
which involves humanitarian values and which are a justification for establishing the
jurisdictional predicate of international concern which therefore validates some form of
humanitarian intervention.
458. See generally supra notes 162-63.
459. Id.; see generally supra notes 1 & 27.
460. Id.
461. Id; see generally supra note 309; see also Janet Koven Levit, Bottom-up
International Lawmaking: Reflections on the New Haven School of International Law, 32
499
approach, which is rooted in the reality of the global social and power
processes, enerates a concern that this reality generates astonishing
complexity.
We therefore outline some of the components of this
complexity for understanding the idea of sovereignty and proceed to apply
novel ideas of theory and method that are empirically grounded to clarify
the idea of sovereignty in the world community today. Distinguished
international law publicists recognize what they regard as the
"[i]nescapability of the concept of sovereignty as a quality of the State
under present-day international law." 463 They also recognize it as a
"fundamental principle of the law of nations.4 64 However, even the
strongest proponents of the positivist view of international law conditioned
by sovereign states assert that international law strongly rejects the
admissibility of absolute sovereignty as the basic principle of international
law. Surveys of the writings of diverse authors indicate a clear repudiation
of any absolutist notion of sovereignty implicit in the command theory
of law and its progeny.46 5 It will doubtless be recalled that Austin relegated
international law to the domain of positive morality, a dubious status it
shared with constitutional law.466
Theory and practice concede certain flexibility about what aspects of
international and constitutional law are to be designated sovereign. 467
However, the criteria by which such practical designations are made
often reflect levels of reification and porousness about what is and is not
sovereign, and what effect and deference are in practice to be accorded
such characterizations. The law of sovereign immunity is a good
example of this proposition. 4 68 The reification of State behaviors labeled
YALE J. INT'L L. 393 (2007); see also Hari M. Osofsky, A Law and Geography
Perspective on the New Haven School, 32 YALE J. INT'L L. 421 (2007).
462. Id.
463.
MAREK STANISLAW KORWICZ, SOME PRESENT ASPECTS OF SOVEREIGNTY IN
INTERNATIONAL LAW 16-17 (1961).
This study remains one of the leading international
law texts on the elucidation of sovereignty from a multitude of vantage points and
disciplines. See also Winston P. Nagan, InternationalCriminal Law and the Ad Hoc
TribunalforFormer Yugoslavia, 6 DUKE J. COMP. & INT'L L. 127 (1995-1996).
464. Id.
465.
A. LARSON & W. JENCKS, SOVEREIGNTY WITHIN THE LAW 463, 465 (1965)
(discussing the issue of sovereignty and international obligation).

466. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF
THE STUDY OF JURISPRUDENCE 12, 140 (Isaiah Berlin, Stuart Hampshire & Richard
Wollheim eds.,1954) (explaining author's imperative theory of law founded on the idea
of an objective and identifiable sovereign as the source of all positive law); contra J.W.
HARRIS, LEGAL PHILOSOPHIES 226-30 (1980). This book is based on Austin's lectures
on the University of London. It spells out his imperative theory of law founded on the
idea of an objective and identifiable sovereign as the source of all positive law.
467. See generally supra notes 1 & 27.
468. Id.; see generally HAZEL Fox, THE LAW OF STATE IMMUNITY (Oxford Univ.
Press 2008).
500
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jure imperii gave ground in practice to State behaviors that could be

juridically classified as jure gestionis, or the competence of a domestic
court or tribunal to treat a foreign sovereign State just like any other
litigant.469 The act of State doctrine in U.S. practice has been similarly
eroded, including the implicit sovereignty assumptions that served to
insulate acts of sovereign states done within their own territories from
adjudication in the courts of other sovereign states. 470 The roots of
reification and porousness in modern international law practice and
custom are tied to the processes of decolonization and the expansion of
the State sovereign system.471 The post World War II processes of
decolonization penetrated, and later eroded, the claims of colonial powers
that their colonies fell within their sovereignty and were thus beyond the
reach of international law concern.472 The key doctrine that eroded the
colonial sovereignty idea was the claim of indigenous political movements
to self-determination, which in post Cold War practice became a jus
cogens.473 In this context, the claim to self-determination simultaneously
denied colonial sovereignty and affirmed sovereignty sustained by selfdetermination. 474 Latent in claims to self-determination was the idea of
sovereign independence. 475 The outcome of the decolonization selfdetermination process was a radical increase in internationally recognized
claims to national State sovereignty. 476 However, vast numbers of these
469. Nagan, supra note 457, at 142 (providing an explanation to the importance of
strengthening humanitarian law and human rights law, which is evident in light of the
recourse to violence to resolve international and internal conflicts).
470. Id.
471. Id.; see generally S.E. Merry, Colonial and Postcolonial Law, in The
Blackwell Companion to Law and Society, (A. Sarat ed., Blackwell Publishing Ltd,
Oxford, UK. 2008); see also James Thuo Gathii, Neoliberalism, Colonialism and
International Governance: Decentering the International Law of Governmental
Legitimacy Governmental Illegitimacy in InternationalLaw by Brad R. Roth, 98 MICH.
L. REV. 1996-2055 (2000) (2000 Survey of Books Related to the Law).
472. Id.; see generallysupra notes 162-63.
473. Id; see also Gerry J. Simpson, The Difusion of Sovereignty: Self-Determination in
the Post-ColonialAge, 32 STAN. J. INT'L L. 255 (1996).
474. Id; see generally JOSHUA CASTELLINO, INTERNATIONAL LAW AND SELFDETERMINATION: THE INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH
FORMULATIONS OF POST-COLONIAL 'NATIONAL' IDENTITY (Martinus Nijhoff Publishers
2000); see also Ediberto Roman, Reconstructing Self-Determination: The Role of

Critical Theory in the Positivist InternationalLaw Paradigm, 53 U. OF MIAMI L. REV.
(1999); Florida International University Legal Studies Research Paper No. 10-18 (July
1, 1999).
475. Id.
476. Id.
501
newly independent sovereign states were weak in terms of national

integration and foreign relations. Moreover, many new states were both
products and victims of cold war politics.477 This led to widespread
reification of sovereignty in vast numbers of newly independent states,
justified under the internal affairs domestic jurisdiction clause of the
U.N. Charter, Article 2(7).478 At the same time that states were claiming
widespread immunity from international duties and obligations (especially
in the human rights sphere), these same states were claiming expanded
sovereign rights as a form of compensation for the wrongs of colonialimperialist exploitation and hegemony.479
B. The United Nations and the InternationalCriminalJustice
The term "sovereignty" in the U.N. Charter is most visible in the
context of sovereign equality. 4 80 Outside this context, the term is rarely
used in the text of the Charter. Indeed, Charter Article 2.7 uses the term
"domestic jurisdiction" as a precept that seems intentionally less inclusive
than the term "sovereign" suggests. 481 The U.N. Charter is part of a
world constitutional instrument. As a constitution, the Charter is the
formal basis of an international rule of law. One of its primary purposes
is to constrain sovereign behaviors inconsistent with its key precepts. It
was in fact the United Nations Security Council, operating under the
authority of Chapter VII, that gave its backing to an international
constitutional innovation, the Tribunals for the former Yugoslavia and
Rwanda, even if that innovation is only an ad hoc one.4 82 On the other
hand, it is well known that the United Nations is going through a crisis
of redefinition in the post-cold war era, and its credibility in the security
477. Id.; see also MICHAEL BARNETr, THE NEW UNITED NATIONS POLITICS OF
PEACE: FROM JURIDICAL SOVEREIGNTY TO EMPIRICAL SOVEREIGNTY GLOBAL GOVERNANCE,
Vol. 1, No. 1, at 79-97 (1995).
478. Id.; see U.N. Charter art. 2, para. 7. This section shifts the focus from the
analytical and normative to the empirical. It provides a short overview of continuing
problems in exploring the nature of sovereignty and why an empirical approach may
advance around the standing of the sovereignty idea. U.N. Charter Article 2.7 is the
Charter's reference to sovereignty. However, it avoids the term. It stipulates that
nothing in the Charter authorizes the U.N. to intervene in matters which are "essentially
within the domestic jurisdiction of any State."
479. Id.
480. Id.
481. Id.
482. Robert Marquand, U.S. Must Support War Crimes Prosecution,CHRISTIAN SCI.
MONITOR (1994) (stating that at the moment it was well known that the United Nations
was going through a crisis of post-cold war era redefinition about how the credibility in
its security and peace-protecting arena was severely tarnished).
502
[VoL. 13: 429, 2012]

and peace-protecting arena has been severely tarnished.48 3 United

Nations officials have been quick to project blame onto the
sovereignty aspect of international power. They hold that stripped of all
the trimmings, the United Nations serves as a directorate of states. If
this is the reality, then two of the most important premises built into the
Charter may be severely compromised. We refer to use of the "people" and
the "individual" as important constraints and components of international
legal order. The crisis that the United Nations faces is not simply
focused on the legal and policy dimensions of its constitutional
architecture in the post-cold war era. Rather, the situation the United
Nations finds itself in raises the important issue of international public
opinion regarding the organization. That opinion is an authority base
crucial to maintaining the effective role and function of the organization.
C. Nuremberg and IndividualResponsibility
The work of Fogelson gives a good explanation of why the war crimes
trials in Nuremberg and Tokyo represent the most remarkable exception
to the decentralized character of international criminal law.484 The great
historic question about Nuremberg is whether it was an aberration, or
whether it represents a sufficiently strong institutional expression of the
international rule of law in action such that the process of criminal
justice it created will become central to an improved world order.
Indeed, a central policy feature of Nuremberg was the ancient function
of the law of preventive politics. In this sense, the law serves as a
restraint on unlimited decisional competence because it requires some
minimal responsibility and accountability for decisions. The Nuremberg
Tribunal held the agents of State decision-making personally responsible
for crimes against peace, war crimes, and crimes against humanity.4 85
483. Barbara Crossette, U.N. Finds Skepticism Is Eroding the Hope That Is Its
Foundation, N.Y. TIMES, June 25, 1995, at I (quoting Indiana Representative Lee H.
Hamilton in 1991 regarding the relationship between the role of the United Nations and
United States policy. He stated that notions of threats to American independence of
action are important issues to Americans: "In some groups of Americans, there is a
distinct fear of loss of U.S. sovereignty to the U.N.").
484. Steven Fogelson, The Nuremberg Legacy: An UnfulfilledPromise, 63 S. CAL.
L. REv. 833, 853 (1990). The critics of Nuremberg in the United States included Robert
Taft and Norman Thomas.
485.
R.H. JACKSON, THE NUREMBERG CASE (1971).
Prosecutor Jackson declared
that the trial in the eyes of the world were to be candidly faced before getting into
evidence considerations because the record on which those defendants were to be judged
503
These transgressions were not only international legal wrongs, but also
punishable through the ascription of personal responsibility by criminal
law sanctions.486 The message of Nuremberg is clear; those who authorized
and committed crimes against the peace, war crimes, and humanitarian
crimes would be personally responsible for those crimes and would be
made to suffer the consequences of their conduct.4 87 To hold the
perpetrators of these proscribed forms of conduct accountable signifies
that terrible things cannot be done to people without a resulting
meaningful international sense of responsibility. Nuremberg's detractors
have attacked it on two grounds: it was seen to represent the victors' justice,
and it was thought to compromise the nulla poena principle. These are
not the strongest objections to the Nuremberg process. The real objections
to Nuremberg are tied to sovereignty issues. 4 88 First, Nuremberg made
the sovereign State and its officials subject to the international rule of
law. This was precisely the point that U.S. Secretary of War Henry Stimson
had in mind when he lent his weight to the idea of trying the Nazi war
criminals. At the core of his thinking was the idea of a crime against the
peace as part of the indictment. Second, Nuremberg permitted penetration
of the veil of sovereignty in order to identify the concrete agents of decision
who were responsible for criminal behavior. From an international law
perspective, the idea that individuals could be directly responsible under
international law subverted a cardinal tenet of the positivist conception
of international law.
was to be the record on which history will judge them in the future; see also W.J.
BOSCH,
JUDGMENT ON NUREMBERG: AMERICAN ATTITUDES TOWARDS THE MAJOR GERMAN WARCRIME TRIALS (1970). Critics of Nuremberg in the United States included Robert Taft
and Norman Thomas. The problem with the argument of victors' justice is that it ignores
the decentralized character of the international constitutive process, and argues
essentially that because there is no central, neutral authority, war crimes must be
consigned to a legal vacuum. Victors' justice is an aspect of the principle ofjurisdiction
by necessity.
486.
See generally STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR
HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY
(New York: Oxford Univ. Press, 2d ed.

INDIVIDUAL
2001); see generally LYAL S. SUNGA,
RESPONSIBILITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN
RIGHTS
VIOLATIONS (Martinus Nijhoff Publishers (1992); see generally Affirmation of the

Principles of International Law recognized in the Charter of the Nuremberg Tribunal,
G.A. Res. 95(1), U.N. GAOR, 1st Sess., at 188, U.N. Doc. A/236 (1947). This resolution
sought to extinguish any lingering doubts concerning the legality of the Nuremberg
Trials.
487. Id.
488.
B.F. SMITH, THE ROAD To NUREMBERG 46 (1981).
Smith notes that Lord
Simon prepared a draft advocating summary execution of high-ranking Nazis with a

number of legal and political arguments to show the trials were inappropriate because the
Moscow Declaration contentions implied that the problem would be dealt with
politically, not judicially and that the best thing to do was simply to shoot a handful of
the top Nazi leaders.
504
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D. The Nuremberg Principles

If we view the operational state of international criminal law as
constitutionally allocated to sovereign states by custom, practice, and
treaty law, then Nuremberg was an important constitutional allocation of
competence to the international community and away from the sovereign
nation state. This is the accurate juridical position which Nuremberg
(and Tokyo) occupied in the global constitutive process. The Nuremburg
tribunal confronted the dualism between sovereign versus personal
responsibility directly: "He who violates the laws of war cannot obtain
immunity while acting in pursuance of the authority of the State if the
State in authorizing action moves outside its competence under International
Law."4 89 Shortly after the Nuremberg decision, the United Nations General
Assembly, in a unanimous resolution, affirmed the Nuremberg principles
as accepted principles of international criminal law. Perhaps the most
concise statement of the essential juridical meaning of the Nuremberg
process came from Justice Jackson:
[A]n Agreement with the four dominant powers of the earth, signed at London
on August 8, 1945, which for the first time made explicit and unambiguous
what was theretofore, as the Tribunal has declared, implicit in International
Law, namely, that to prepare, incite, or wage a war of aggression, or to conspire
with others to do so, is a crime against international society, and that to
persecute, oppress, or do violence to individuals or minorities on political,
racial, or religious grounds in connection with such a war, or to exterminate,
enslave, or deport civilian populations is an international crime, and that for the
commission of such crimes individuals are responsible." 490
Nuremberg was technically based on an agreement between the States

who became the victors over the Axis Powers. 491 However, it should be
acknowledged that even among the allies, there was no agreement on the
precise legal foundation of the proposed proceedings. Stalin, for example,
489.
ROBERT H. JACKSON, THE NUREMBERG CASE at XIV-XV (1946) (citing R.H.
JACKSON, FINAL REPORT TO THE PRESIDENT OF THE UNITED STATES ON THE NUREMBERG
TRIALS (1947)). Jackson outlined the invasions of other countries and initiation of wars
of aggression in violation of international law or treaties as one out of three categories of
crimes that the defendants would be asked to account for. He regarded this crime as
central to the entire conception of the trial.
490. Justice Jackson's Final Report to the PresidentConcerning the Nurnberg War
Crimes Trial, 20 TEMP. L. Q. 338 (1946); see also The Nuremberg Decision, 6 F.R.D. 69,
110 (1946). This was a major innovation in international law in which the victorious
allies held Nazi leaders criminally responsible for the crimes committed under the banner
of the Nazi State.
491. Id.; see also note 243.
505
thought that the execution of fifty-thousand SS Operatives would satisfy

the demand for post-conflict justice. Churchill thought this was excessive
and speculated with a figure of 5,000 SS executions. From the record it
appears that the English Legal establishments were opposed to the idea
of trying the sovereign or its representatives. Somehow, the Nuremberg
proposal went through negotiations and then the novel trials subjecting
the sovereigns officials to international criminal justice became a living
global institution of legal accountability. The Nuremberg Trials had to
solve important problems. For example, although the defendants were
on trial for unprecedented crimes, according to the Principles, they were
entitled to the idea of a fair trial with competent legal representation,
meaning that they had certain fundamental rights granted by international
legal order.492
VIII. CONSTITUTIVE PROCESS AND SOVEREIGNTY INTHE
AFTERMATH OF NUREMBERG
A further question of the Nuremberg Trials, crucial to the defense, was

that since they were acting under the authority of a sovereign State, they
could not be personally liable. Here Nuremberg made a major advance
in legal thinking. Essentially the sovereign is an abstraction from reality.
Behind the sovereign are the active human agents of decision-making.
In that role they were legally accountable and appropriately prosecuted
in the Nuremberg proceedings. The significant innovation here was to
refute the idea that the sovereign, assuming traditional monarchical
powers, could do no wrong. This version of sovereignty was subject to
principles that today significantly inform the legitimacy of the concept
because they stress the ideas of transparency, responsibility, and
accountability and reject the idea that invoking the idea of sovereignty
provides a cloud in which there is no responsible agent of decision. The
discourse of international criminal law would be greatly improved if the
reification and porousness of the term sovereignty is put into a more
disciplined theoretical focus that stresses the issue of constitutive
competencies and interests, permitting analysis to clarify which interests
are sovereignty exclusive and which are sovereignty inclusive. Such a
focus would do a great deal to clarify the reach, purpose and competence
to apply, prescribe and enforce what is called "international criminal
law."493 One of the major vices of the term "sovereignty" is the
492. Colin Warbrick, International Criminal Courts and Fair Trial, 3 J. ARMED
CONFLICT L. 45 (1998); see also David Harris, The Right to a Fair Trial in Criminal
Proceedingsas a Human Right, 16 INT'L & CoMP. L. Q. 16, 352-78 (1967).
493.
See generally Myres S. McDougal et al., supra note 43.
506
[VOL. 13: 429, 2012]

designative reference given to the analytically distinct concepts of authority

and control. The sovereignty idea in reified garb continues to perpetuate
the Austinian fallacy of collapsing authority and control, making it
extremely difficult to properly appreciate how international criminal law
is rationally prescribed and applied. Indeed, a proper appreciation of
these processes is crucial to developing a more rational approach to the
international and constitutional allocation of competence in controlling
and regulating criminal behaviors that require effective community
interventions. The destructive impact of criminal behaviors on important
world order values are serious enough that effective policing is required
from local to global levels in the name of the world community as a
whole. To strengthen the conceptual and doctrinal basis of humanitarian
law we must purge the sovereignty precept of the conceptual and
normative confusion it generates and use more precision about the nature
of the s ecific problems in which sovereignty is invoked as a sword or a
shield .4
A clearer perception of the common and special interest of the term

sovereignty sometimes seeks to promote, protect, or compromise a
clearer delineation of the precise role in the constitutional order and
promise of the U.N. Charter. We must map and locate sovereignty more
precisely within the context of global power and constitutive processes.
As applied to the constitutional position of the ad hoc Tribunals, the
practical question is whether the common interest of sovereign entities is
better protected by this constitutional innovation, or whether exclusive
parochial interests of a reified sovereignty precept undermine this effort
at grounding international justice in its practical application. Some
states may view them as just an exception to the overriding imperium of
State sovereign competence over international criminal law. Other State
parties have seen this constitutional innovation as an important step in
creating an independent, international criminal court. Contextual mapping,
494. See generally Myres S. McDougal et al., supra note 43; compare with Myres
S. McDougal et al., The World Constitutive Process of Authoritative Decisions, in THE
FUTURE OF THE INTERNATIONAL LEGAL ORDER 73 (Richard A. Falk & Cyril E. Black
eds., 1969), reprinted in MYREs MCDOUGAL & MICHAEL W. REISMAN, INTERNATIONAL
LAW ESSAYS 191 (1981). The founding members of Yale's New Haven School
examined how governing hegemons manipulate social development and world public
order. The technique of contextual mapping provides indicators that locate sovereignty
within the interpenetrating regional, national, and global constitutive processes allowing
an inquiring scholar to locate sovereignty within an appropriately comprehensive social
and power context.
507
a technique associated with the New Haven School, can be used to

clarify the meaning and workings of sovereignty.495 The technique is
based on the principle that concepts and terms are better understood
when the contexts in which they are used are better understood. We argue
that contextual mapping shows that among and within nation-States, the
concept of sovereignty is used as an instrument by which to establish
and maintain authority. We may define nation-States by four essential
characteristics. First, and according to U.N. SCOR 1948, traditional
international law requires a State to control a territorial base with
determinable boundaries.4 96 Second, a State is required to control a
population connected by solidarity, loyalty, and primary notions of group
affiliation and identity. 4 9 7 Third, it is the related aspect of internal
governance that requires a controlling internal power and competencies.498
The fourth traditional criterion is the requirement of a controlling power
to represent the State or territorially organized body politic in the
international environment. However, the four traditional criteria obscure
what is arguably the most vital building block of the "State"; how
authority is constituted. Contextual mapping clarifies that process.
A. The New Haven Approach: Empiricaland Normative Integration
The New Haven School identifies three fundamental processes of
contextual mapping: the social process, the power process, and the
495. See generally supra notes 25 and 461. (Consisting initially of Harold Lasswell,
Myres McDougal, and their colleagues, the New Haven School seeks to illumine the
world political process by ascertaining and examining meaningful cultural, financial,
psychological, and emblematic factors that lay beneath social behaviors. To track this
examination, the New Haven School created a comprehensive contextual mapping
system of human social structures.).
496. U.N. SCOR, 383d mtg. Supp. No. 128 at 9-12, U.N. Doc. S/P.V. 383 (Dec. 2,
1948). Jessup, Phillip, U.S. Representative to the Security Council, remarked on the
definition of a State to the U.N. that: "the reason for the rule that one of the necessary
attributes of a State is that it shall possess territory is that one cannot contemplate a State
as a kind of disembodied spirit. Historically, the concept is one of insistence that there
must be some position of the earth's surface which its people inhabit and over which its
government exercises authority."
497. George Simmel, Social Interaction as the Definition of the Group in Time and
Space, in INTRODUCTION TO THE SCIENCE OF SOCIOLOGY 348, 348 (Robert E. Park &
Ernest W. Burgess eds., 3d ed. 1969). This emerging human element is the foundation
of community norm generation.
498. Henry T. Wright, Toward an Explanation of the Origin of the State, in
EXPLANATION OF PREHISTORIC CHANGE 215, 217 (James N. Hill ed., 1977) (citing Robert
L. Carneiro, A Theory of the Origin of the State, 169 Sci. 733 (1970)). A State may be
characterized as "an autonomous territorial and political unit having a central
government with coercive power over men and wealth." A State may be identified by its
ability to defend itself against external international pressures or conflicts.
508
[VOL. 13: 429, 2012]

constitutive process. 499 The social process is simply the activity of human
beings seeking, through institutions, to promote their values. The power
process is a specialized aspect of the social process; it is the activity of
human beings pursuing power through institutions. The constitutive
process is an aspect of the power process; it is the process by which
institutions for the management of power are effectively and authoritatively
developed. The constitutive process is the creation of reasonably
predictable expectations about the allocation of fundamental decisionmaking authority. When the power process is mapped onto the constitutive
process, we begin to observe the emergence of authority in constituting
fundamental power arrangements, where authority is understood, in
contradistinction from power, as having a normative element. To illustrate,
any community exhibits contestations for power that may take the form
of violent rebellions or revolution. The winners will seek to "constitute"
or institutionalize their authority.500 They may have won a battle, but
winning the peace and stabilizing their power basis may require more
concrete formulations of the "authoritative" and "controlling" aspects of
power. Even if no clear winner emerges from the conflict, the contesting
parties may see that stabilizing their claims and expectations about
power is in their mutual self-interest. This is because stabilizing
expectations about how the basic institutions of decision are
established and continuously sustained are vital to the constitution
of power and its concurrent and subsequent "recognition." 50 ' From an
empirical view, constitutions, written or otherwise, are nothing but
codified expectations of authority and stability in contradistinction to the
499. See generally HAROLD D. LASSWELL & MYRES S. McDOUGAL, supra note 176
(Decisions which identify and characterize the different authoritative decision makers,
specify and clarify basic community policies, establish appropriate structures of
authority, allocate bases of power for sanctioning purposes, authorize procedures for
making the different kinds of decisions, and secure the continuous performance of all the
different kinds of decision functions necessary to making and administering general
community policy.).
500. Harold G. Maier, ExtraterritorialJurisdictionat a Crossroads:An Intersection
Between Public and Private International Law, 76 AM. J. INT'L L. 280 (1982).
Notwithstanding this process of vying for sovereign power over a community, it has
been argued that at least to some extent, the beliefs of individual members of that
community are reflected in each act of their sovereign ruler.
501.
See MYRES MCDOUGAL & MICHAEL W. REISMAN, INTERNATIONAL LAW ESSAYS
(1981) (discussing the three aspects of prescriptive communication that essentially

convey legal norms because they designate policy that both emanates from a source of
authority and creates an expectation in the target audience that the policy content of the
communication is intended to control).
509
prospect of continuous conflict over how power and authority are to be

constituted and exercised.502 Conflict and its polar opposite, collaboration,
are present in all forms of social organization.50 3 Even when authority is
provided for in a formal constitution, there will always be conflict
regarding the precise allocations of power and competence. Even when
the high intensity violent conflict is contained, the settlement will be
fraught with contestations for power. Conflict cannot be banished from
human relations, but its form can change. Often, post-conflict settlements
generate situations of constructive conflict. Thus, some forms of conflict
may be socially beneficial.
B. The Map and Markers of the Global Social Process
The work of McDougal, Reisman, and Willard identifies the markers
used to map the social process context. 5 04 Lasswell and McDougal
provide an extensively developed map of the Social Process Context of
506
505
These
Law.s0 s The first marker is the identification of participants.
include the governmental groups, including national and transnational;
and the nongovernmental groups, which includes political parties,
pressure groups and private associations; and finally individuals.50 7 These
participants emerge with subjectivities, which are mark as perspectives,
that include the markers of identity, claim, and expectation. 0 s Claiming
includes demands for all the central values in social organization such as
power, respect, enlightenment, wealth, skill, well-being, skill, rectitude,
502. Walter 0. Weyrauch, The "Basic Law" or "Constitution" of a Small Group,
27 J. Soc. ISSUEs 49, 56-58 (1971) (documenting an experiment in which several
Berkeley students were locked in a penthouse for three months. The focus of this
experiment was the evolutive character of law).
503. W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM.
J. INT'L L. 83, 83 (1993). The U.N. Charter identifies authoritative decision-makers and
procedures by which decisions might be made because it articulates a framework of
practices created to facilitate decisions in the interest of "[maintaining] peace and
security," which, as Professor Reisman puts it, "[requires] more and more cooperation
between large and small states."
504. Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World
Community: A PlanetarySocial Process,21 U.C. DAVIs L. REV. 807 (1988). This article
provides the most comprehensive map of the Social Process Context of Law. From the
perspective of the New Haven School, international lawmaking, or prescription is seen as
a process of communication involving a communicator and a target audience. The
substance of this communication functions as signs or symbols of policy content,
symbols of authority, and symbols of controlling intention.
505. See MYRES S. McDOUGAL & HAROLD D. LASSWELL, supra note 176 at 336.
This source also provides an extensively developed map of the Social Process Context of
Law.
506. Id.
507. Id.
508. Id.
510
[VOL. 13: 429, 2012]

and affection.50 9 All subjectivities implicated in human perspectives may

result in claims generating problems, which require social responses.5 10
These problems related to subjectivities are located in identifiable
situational context 5 11-geographic, temporal, institutionalization
and crisis. 512 Each of these situational contexts will influence the efficacy
and realism of the claims of perspective. In order to proceed with the
claims of perspective in different situations, the claimant must have
some access to bases of power to give the claim a sense of efficacy and
realism. 513 In law, it is the skill in the mobilization of authority, as base
of power, which is helpful. However, any value may not only be sought
for its own sake but may serve as a base of power to facilitate the
realization of a claimed perspective. 514 The participant mobilizing bases
of power must still use available strategies to achieve the satisfaction of
demand." In general, these strategies include the following: diplomatic,
ideological, economic, and military. 1 6 In short, strategies may be
persuasive or coercive. The penultimate marker identifies the outcomes
of interaction between perspectives, values, strategies, and institutions.5 17
These outcomes reflect upon the production, conservation, distribution,
and consumption of all values. 18 The final marker requires the
identification of the effects of social interaction on social process in
terms of the shaping and sharing of values.
One of the major outcomes
and effects of social interaction concerns specialized feature of the social
509. Id.
510. Id.
511. Id.
512. Id
513. Id.; See generally Myres S. McDougal et al., supra note 43 (A core philosophy
of the New Haven School is that in order to count as law, international law must have a
prescriptive policy content, it must be accompanied by symbols or signs indicative of
widespread community acceptance, and it must be accompanied by a conception that
some institutionalized control exists to ensure that the prescribed law is real.).
514. Id.; see also Myres S. McDougal & Harold D. Lasswell, The Identificationand
Appraisal of Diverse Systems of Public Order, 53 AM. J. INT'L L. 1, 9 (1959). The New
Haven School is not concerned with formal structures of government. It instead remains
focused on policy so that it can explore the interplay between law and the world
community through the lens of social processes. The New Haven School explores the
processes of decision-making with specific regard to the legal process, by which the
authors meant the making of authoritative and controlling decisions.
515. Id.
516. Id.
517. Id.
518. Id.
519. Id
511
process specialized to the production and distribution of power; the

identifiable power process.5 20
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the major outcomes of the
process of effective power has been the creation and maintenance of the
institutions of authoritative decision-making.523 Placing the concept of
520.
521.
522.
Id.
Id.
Id.
523. Id.; see also Myres S. McDougal, Harold D.Lasswell &W. Michael Reisman,
The World Constitutive Process of Authoritative Decisions, in THE FUTURE OF THE
INTERNATIONAL LEGAL ORDER (C. Black & R. Falk eds., 1969), reprinted in MYRES S.
McDOUGAL & W. MICHAEL REISMAN, INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO
INTERNATIONAL LAW INCONTEMPORARY PERSPECTIVE (1981). The founding members of

Yale's New Haven School examined how governing hegemons manipulate social
development and world public order. Discusses three aspects of prescriptive
communication that essentially convey legal norms because they designate policy that
512
[VoL. 13: 429, 2012]

sovereignty within the map of the social, power, and constitutive processes,
we find that sovereignty reflects the allocation of fundamental decisionmaking competencies about the basic institutions of governance itself.524
Within a nation-State, it is the authorization and recognition of persons
or institutions competent to make basic decisions about governing power at
all levels. 525 On the international stage, the stabilization of expectations
in political bodies with effective control over populations, territorial
bases, as well as over the instruments of internal governance and external
recognition leads to the creation of sovereignty with independence and
international legal personality. 526 The term "sovereignty," by itself, gives
us no clues as to its creation, how it is maintained, its changing character, or
how it is terminated. The empirical focus of contextual mapping may
provide a useful bridge between the different disciplines and cultural
contexts in which the term is used, often abused, and certainly
misunderstood.527 The sovereignty idea is a critical component of the
processes by which authority and control are institutionalized in different
contexts, from the Global Constitutional Process to the National and Local
Constitutional Processes.528 An important insight into both theory and
the practice of sovereignty is that a precise meaning is still elusive. This
may reflect the tough reality that power at all levels is a contested
matter.529 Additionally, the salience of authority is as contested as the
nature of power.5 30 Whether this is a problem that may be solved by
conceptual/analytical analysis or whether, as suggested by the theorists
of the New Haven approach, the approach should be empirical using the
both emanates from a source of authority and creates an expectation in the target
audience that the policy content of the communication is intended to control.
524. Id.
525. Id.
526.
Id.; see also Pieter H.F. BEKKER, THE LEGAL POSITION OF INTERGOVERNMENTAL
ORGANIZATIONS 74 (1994). Scholars disagree about the extent to which recognition is

required to establish legal personality, or if legal personality can indeed exist
independently of recognition. If legal personality can exist without recognition,
recognition is transformed into a legal duty possessed by the state.
527.
Id; see also MCDOUGAL & LASSWELL, supra note 176. They offer a configurative
conception of jurisprudence that is the end result of an authoritative decision-making

process. They argue that a scientifically grounded answer to any policy-oriented
problem can be reached that might promote the common interest to achieve a world
order based on fundamental principles of human dignity. Scholars and policymakers
regard their approach to decision-making as a rigorous one embedded in a social context.
528. Id.
529. Id.
530. Id.
513
techniques of contextual mapping to secure a more precise contextually

defined description and justification of the sovereignty concept, is a
matter for future theoretical speculation.
According to McDougal and Reisman,3 expanding on Lasswell and
Kaplan, 5 32 the global power process is an outcome of the global social
process, which generates claims about the shaping and the sharing of power.
The relevant markers start with the marker that identifies Participants.
Participants include groups that are governmental non state groups, i.e.
the individual. 3 These groups may be national or transnational. They
include groups that are non-governmental, pressure groups as well as the
myriad global and national associations of civil society. The next marker
focuses on the Power directed subjectivities of both groups and individual
participants in the global power process. These subjectivities comprise
the Perspectives of claiming or demanding power to participate in the
shaping and sharing of power and in the maintenance of the processes of
authoritative decision-making. Perspectives also include claims to
identification that have power implications as well as claims to perspectives
of expectations that implicate the shaping and the sharing of power. The
actions implicating the perspectives of power occur in Arenas which are
the same as those marked in the social process. The next marker identifies
the Basis of Power that the claimants and contestants for power may
deploy. They require that all values that the claimant has access to or
control over may be used as a base to advance the claim with regard the
shaping and sharing of power. Power may be a base of power to get
more power. Wealth may be used to get power and all other values, such as
respect, enlightenment, health, and well-being. Affection and rectitude
may also be used as bases to enhance the power position. The next marker
focuses on the Strategies of the use of power which are usually strategies
of coercion or persuasion. They include at the global level the strategies
of diplomacy, ideology, economy and military values. The penultimate
marker is one that generates the process of decision-making since power
can only be deployed as a function of decision. The outcomes of the
power process will be decision and its functions which include intelligence,
promotion, prescription, invocation, application, termination and appraisal.
The final marker for a description of the power process lies in the
identification of its Effects on public order as well as the elements of
531. Id.; see also Myres S. McDOUGAL & W. MICHAEL REISMAN, THE WORLD
PROCESS OF EFFECTIVE POWER: THE GLOBAL WAR SYSTEM, POWER AND POLICY IN QUEST
OF LAW: ESSAYS IN HONOR OF EUGENE VICTOR RoSTOW (1985).
532. Id.; see also HAROLD D. LASSWELL & ABRAHAM KAPLAN, POWER AND SOCIETY: A
FRAMEWORK FOR POLITICAL ENQUIRY (1950).
533. Id.; see also W Michael Reisman, Private Armies in a Global War System:
Prologue to Decision, 14 VA. J. INT'L. L. 1 (1973).
514
[VOL. 13: 429, 2012]
stability and change in it. This map is developed in greater detail in

Lasswell and McDougall.5 34
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The constitutive process is an outcome of the power process. 535 It is a
continuous process but it does not render irrelevant the similarly

continuing process of conflict in accordance with the constitution. There
is an intuitive, ongoing relationship between contestations for power and
the constituting and stabilizing of such contestations. The continuing
constitutive process shapes communication regarding conflict management
and collaboration to establish and maintain the basic political and
juridical institutions of effective and authoritative decision-making. 536
One of the most important outcomes of the power process is the patterns
of communication regarding conflict and possible collaboration. The
understandings generated by power brokers in their contestations for
power frequently involve communications and understandings about the
limits, constitution, and uses of power for collaboration rather than
534. Id.; see also MYRES S. McDOUGAL & HAROLD D. LASSWELL, supra note 176 at
147-77; see also MYRES S. McDOUGAL & HAROLD D. LASSWELL, JURISPRUDENCE FOR A
FREE SOCIETY, VOL. 11,pp. 1439-1475 (1992) (A detailed development of the map of the
power process is provided in Appendix IV, titled The Community Power Process: An
Outlinefor Policy-OrientedInquiry. Id. at 1439-88.).
535. For a summary of the map of the constitutive process, see MYRES S.
MCDOUGAL & HAROLD D. LASSWELL, VOL. II, supra note 534, at 1475-88.
536. Id.; see generally Myres S. McDougal et al., supra note 43.
515
conflict. From an observer's point of view, a central feature of what is

called "constitutional law" is that it is a way of institutionalizing
expectations relating to the management of power in the basic
institutions of authoritative and controlling decision-making.537 The
understandings that emerge from the power process reflect the
development, however imperfect, of cultural forms that seek to constrain
excessive, destructive conflicts and structure conflicts productively.
Practical frameworks of communication and collaboration are generated,
and basic human expectations that, under scrutiny, may reveal a "living"
constitutional arrangement where cultural expectations of how
decision-making is fundamentally interwoven with social organization are
actually or behaviorally constitutionalized.538 This might happen without a
written constitution and still be an effective instrument of constitutive
authority. Alternatively, the outcomes of social conflict, such as civil
war, anti-colonial wars, or agitation for self-determination, might lead to
the formulation of written expectations about the management of basic
decision-making competences in the political culture. In short, conflict
sometimes provokes the creation of a written constitution. On the
international stage, wars and multi-State conflicts have historically
stimulated the development of regional compacts and mutual
understandings.5 39 Indeed, perhaps the clearest example yet of a global
compact representing the parties' common interest is the U.N. Charter.
One of the most important outcomes of the global constitutive and
power process is the creation of the sovereign State.
As indicated above, the constitutive process is an outcome of the
power process and the critical outcome of the power process is the
54 0
process of decision-making according to power and decision function.
The constitutive process emerges from the understandings of the dominant
537.
Id.; see also MYRES S. McDOUGAL & HAROLD D. LASSWELL, VOL. II, supra
note 534, at 1489-1526
(THE APPLICATION OF CONSTITUTIVE PRESCRIPTION: AN ADDENDUM

TO JUSTICE CARDOZO, APPENDIX V) (examining the way on which sovereign constituted
authority develops procedures for grounding value judgments in instances of particular

application). These principles are applied to the challenges of sovereign decisionmaking implicating human rights decision-making.
538. Id.; see also MYRES S. MCDOUGAL & HAROLD D. LASSWELL, VOL. II, supra
note 534, at 1527-64 (demonstrating the importance of sovereign authority in global public
order developing principles of content and procedure for giving practical application to
international human rights).
539. Id.; see also M.S. McDougal & H.D. Lasswell, The Identification and
Appraisal of Diverse Systems ofPublic Order,53 AM. J. INT'L L.1 (1959). The School's
lead scholars suggest that international law is a "world constitutive process of
authoritative decision" perhaps referring to existing legal regimes such as the U.N.
Charter. The goal of international law, the School's founders argue, is the establishment
of world public order by instituting regimes of effective control and moving away from
existing regimes of ineffective control and authority.
540. Id.
516
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SAN DIEGO INT'L LJ.
claimants to power. Those understandings reflect expectations about

how decisions are to be authorized and allocated for the purpose of
vesting those decisions with a degree of "authorization." This is the
constitutive process. 54 1 The markers for the purpose of mapping the
global constitutive process start with the marker of participation. This
marker covers the same range of participants as the social process. The
critical indicators of participation reflect under inclusivity of the process
and the assignment of responsibility. The second marker touches on the
subjectivities of perspectives.543 The perspective of demand focuses on
claims that are directly toward the clarification of the common interest
of the community and focuses on the degree of inclusivity or exclusivity
involved in the process of clarifying the common interest. This marker
also requires a preference for inclusivity in the clarification of the
common interest and the rejection of special interests redefining the
community interests. The perspectives of identification require an
identification with the entire community. The perspectives of expectation
require that it be contextual, realistic, and rational. The perspectives of
expectation also recognize that constitutive expectations are complementary
in character and therefore require some supplementation to strengthen
and support fundamental community expectations about the constitution
of power.54 4
From the markers that touch on participants and their subjectivities
(subjectivities if identification, demand and expectation) we now mark
the arenas within which power condition participants interact.545 Lasswell
and McDougal identified the arenas of the constitutive process, which
are socially important for the institutional and geographic reach.546 At
the level of institutionalization, the constitutive process generates
institutions of decision that are legislative, judicial, executive, and
administrative. The reach of the constitutive process in geographic
terms touches on the problems of the degree of centrality and the reach
of authority to the periphery. 547 This process has an important temporal
541. Id. For a concise summary of the constitutive process and the overriding
principles that provide guidance in understanding this process, see MYRES S. McDOUGAL
& HAROLD D. LASSWELL, VoL. II, supra note 534, at 1131-54.
542. Id.
543. Id.
544. Id.
545. Id.
546. Id.
547. Id.
517
dimension, which may be random and occasional or sustained and

continuous. The geographic and temporal arena of the constitutive
process is a crucial component of the territorially organized sovereign
state. Another important marker is the marker of crisis.54 8 Constitutive
process claims are claims about power and therefore represent the
prospect of the clash of power and conflict. Decision-making in this
context has to account for the effects of crisis on decision-making. A
critical dimension of the constitutive process is the issue of access. The
question of whether access is open and or compulsory indicates a great
deal about the nature and quality of the constitutional culture. The bases
ofpower are bases that reflect decision-making and its invocation that
are both authoritative and controlling. The strategies are essentially the
same as community process. Detailed procedures implicating specialized
types of decision-making are an important part of the strategies of the
constitutive process. The penultimate marker refers to outcomes. The
outcomes of constituting power in effect vest power with authority. One
of the outcomes of constitutionalizing power and authority in a territorially
organized body politic is the outcome of sovereign competence. The last
marker reflects on the effects. Clearly the constitutive process has important
consequences for the system of public order. One of the important
outcomes is the outcome of sovereign nation State competence. The
critical question is whether the dominance of the sovereign nation State
will endure from a global perspective.
548.
Id
518
[VOL. 13: 429, 2012]
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519
520

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Sovereignty in Theory and Practice

THE THEORY OF SOVEREIGNTY AND INTERNATIONAL LAW

JeanBodin and Sovereignty Theories in Context .....

MODERN INTERNATIONAL SOVEREIGNTY

Sovereignty andInternationalObligationAfter the

U.N. Charter'sMembership, Obligations,and

HeinOnline -- 13 San Diego Int'l L.J. 429 2011-2012

CONTEMPORARY JURIS CONSULTS RELATING TO THE LEGAL

EmpiricalPerspectives and Theories of Decolonization ......................... 499

CONSTITUTIVE PROCESS AND SOVEREIGNTY IN THE AFTERMATH

The Background to the Development of the Sovereignty

CONTEMPORARY PROBLEMS IN THEORY AND PRACTICE ..

The Work and Contributions ofHL.A. Hart.........

SOVEREIGNTY, INSTITUTIONAL COMPETENCE AND U.S. PRACTICE

The PracticeofInternationalLaw in the Twentieth

The New Haven Approach: Empirical and Normative

HeinOnline -- 13 San Diego Int'l L.J. 430 2011-2012

[VOL. 13: 429, 2012]

Sovereignty in Theory and Practice

trend in practice. The Article provides a survey of the leading thinkers'

SOVEREIGNTY: RECONSTITUTING POLITICAL AUTHORITY IN THE TWENTY-FIRST CENTURY

(Univ. of Toronto Press

(2005); see also Kanishka Jayasuriya,

Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism?, 8

CONSTELLATIONS, 442-60 (2001): see also Jacques Maritain, The Concept of

HeinOnline -- 13 San Diego Int'l L.J. 431 2011-2012

sovereignty in an environment of multiple sovereigns.6 This was an

6. See generally EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: GROTIUS,

HeinOnline -- 13 San Diego Int'l L.J. 432 2011-2012

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Sovereignty in Theory and Practice

could be no global super-law that subordinated sovereign competence.12

HeinOnline -- 13 San Diego Int'l L.J. 433 2011-2012

See generally EILEEN MUNRO, UNDERSTANDING SOCIAL WORK: AN EMPIRICAL

APPROACH (Athlone Press 1998).

HAROLD D. LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY (Free Press

HAROLD D. LASSWELL, PSYCHOPATHOLOGY AND POLITICS (Univ. Chi. Press

HeinOnline -- 13 San Diego Int'l L.J. 434 2011-2012

[VoL. 13: 429, 2012]

Sovereignty in Theory andPractice

were later to emerge in an approach to sovereignty that involved more

28. Nandasiri Jasentuliyana, Perspectives on international law, KLUWER LAW

HeinOnline -- 13 San Diego Int'l L.J. 435 2011-2012

HeinOnline -- 13 San Diego Int'l L.J. 436 2011-2012

[VoL. 13: 429, 2012]

Sovereignty in Theory and Practice

However, giving concrete meaning to

See generally HERMAN DOOYEWEERD, THE CONTEST ABOUT THE CONCEPT OF

SOVEREIGNTY IN MODERN JURISPRUDENCE AND POLITICAL SCIENCE (Free Univ.

(Tracing the historical development of Sovereignty in legal and social thought).

ARTHUR LARSON, C. WILFRED JENKS & OTHERS, SOVEREIGNTY WITHIN THE

LAW (Oceana Publications 1965) (consisting of a collection of essays by leading thinkers

HeinOnline -- 13 San Diego Int'l L.J. 437 2011-2012

Abraham Kaplan explained in their work how external sovereignty must

HeinOnline -- 13 San Diego Int'l L.J. 438 2011-2012

[VoL. 13: 429, 2012]

Sovereignty in Theory and Practice

simplistic sense of Bodin's contribution is that it was committed to the

See J.H.M. Salmon, The Legacy of Jean Bodin: Absolutism, Populism or

Constitutionalism?,17 HISTORY OF POLITICAL THOUGHT 500,500-22, 523 (1996).

See generally Edward R. Norman, The Roman Catholic Church: an illustrated

"[m[ajestas est summa in cives ac subditos legibusque solute potestas" (Sovereignty is

HeinOnline -- 13 San Diego Int'l L.J. 439 2011-2012